A dramatic new chapter in the legal fight over Proposition 8 opens today, with debate over the purpose of marriage, the power of social convention and the rights of gay individuals televised live from federal court for the first time.
First, however, a three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco will hear an hour of debate over whether backers of California's Proposition 8 even have the right to defend the voter-approved measure.
Discussion of the historic ruling and its constitutional soundness, set for the second half of a two-hour hearing, is sure to be emotional and capture public attention "because it's sexier stuff, no pun intended," said Vik Amar, a University of California, Davis, constitutional law expert.
But the debate over merits may matter less, Amar said, if the judges ultimately focus only on the question of standing. They could disqualify the proponents or Imperial County – or both – because they don't pass the constitutional test for standing in federal court.
The 2008 proposition amended California's constitution to declare marriage to be only between a man and a woman.
Gov. Arnold Schwarzenegger has declined to defend the initiative and now says he thinks same-sex marriages should be allowed.
As attorney general, Gov.-elect Jerry Brown also refused to defend the measure, which he argues is unconstitutional.
One state jurisdiction, tiny Imperial County, has entered the fray, filing for legal standing to appeal U.S. District Judge Vaughn R. Walker's August ruling that Proposition 8 violates gays' constitutional rights and serves no rational government purpose.
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