Attorneys for both sides in the Prop 8 case made their arguments before a three-judge panel of the 9th U.S. Circuit Court of Appeals on Monday to determine the fate of the voter-approved ban on same-sex marriage in California.
According to The New York Times, much of the debate centered on the legal standing of the supporters of Prop 8, that is whether the law allows them to represent the state in the appeal. Those with legal standing—Governor Arnold Schwarzenegger, Governor-Elect Jerry Brown and Attorney General-Elect Kamala Harris—have all declined to appeal U.S. District Judge Vaughn Walker’s August decision, which found Prop 8 unconstitutional.
The second half of the arguments focused on the original purpose of the ban on gay marriage and whether or not the state was justified in allowing voters to approve such a ban.
Charles Cooper, chief counsel for the proponents of Prop 8, rehashed his argument that marriage exists for sole purpose of procreation and that California voters had the right to protect traditional marriage by supporting the ban.
When Judge Michael D. Hawkins asked, “Could the people of California reinstitute school segregation by a public vote?” Cooper changed the subject, responding that the state had no “legitimate interest” in maintaining racial restrictions on marriage but that the state does have an interest in maintaining the traditional definition of marriage.
Theodore B. Olson, arguing on behalf of the plaintiffs reasserted his position that marriage is “a fundamental individual right.”
Most legal scholars agree that no matter how the panel rules, the 9th Circuit is not the end of the road for Prop 8 and the case will eventually land in the U.S. Supreme Court. How and when the case will arrive there is still unclear.
As NPR suggests, the panel of judges might issue a broad ruling that could create “a situation where there would be a federal constitutional right to same-sex marriage west of the Rockies, but nowhere else in the United States,” according to Vik Amar, associate dean of the law school at the University of California, Davis.
The Los Angeles Times indicates that the panel is more likely to issue a narrow ruling, which would only apply to same-sex marriage in California.
Finally, if the supporters of Prop 8 are not found to have legal standing in the appeal, the legal recognition of gay marriage could resume in California without an opinion from the panel. In all three scenarios, the losing side is expected to appeal to the U.S. Supreme Court.
