SAN FRANCISCO — Three federal judges took on the historic clash over Proposition 8 Monday, asking probing questions as they weighed arguments about whether voters acted rationally when they banned gays from marrying in 2008.
Proposition 8 supporters are appealing a ruling this August by U.S. District Judge Vaughn Walker that the measure violated the federal constitutional rights of gay people. The 9th U.S. Circuit Court of Appeals proceeding, broadcast around the world, was another legal step in what many believe is an inevitable finale before the U.S. Supreme Court.
For more than two hours, the panel of judges asked pointedly whether the voters could legally take from gay people the right to marry that had been briefly granted them by the California Supreme Court.
When an attorney representing Proposition 8 supporters repeated claims that society – and voters – had an interest in banning gay marriage because of children's welfare, Judge Stephen Reinhardt fired back: "That sounds like a good argument for prohibiting divorce."
Judge N. Randy Smith – considered more socially conservative than the two judges appointed by Democrats – Reinhardt and Michael Daly Hawkins – also demanded to know why it made sense to bar gay marriage given that California already recognizes many domestic partnership rights.
"We're left with a word: marriage," Smith said, adding that "I'm trying to find the rational basis in this situation when California has gone as far it can."
Hawkins asked the Proposition 8 attorneys, "Could the people of California reinstate school segregation?"
Attorney Charles Cooper conceded that voters could not because the U.S. Supreme Court has clearly prohibited it. In contrast, Cooper argued, the nation's high court has not clearly defined gays' rights, and lower courts in other states have upheld other state restrictions on allowing gays to marry.
Theodore Olson, attorney for the gay plaintiffs, told the judges that the U.S. Supreme Court has ruled that homosexual intimate relations are constitutionally protected. The high court has also ruled, in separate cases, he said, that marriage is a fundamental right. Olson said gays are only seeking what should be theirs under the U.S. Constitution.
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