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Judges Hawkins, Reinhardt, and Smith (AP/Eric Risberg)

Prop 8's fate

Courts | Three judges from the 9th Circuit hear arguments on the constitutionality of California's definition of marriage

The 9th U.S. Circuit Court of Appeals heard oral arguments Monday for the case that will decide the fate of Proposition 8, California's 2008 ballot initiative that added a provision to the state constitution defining marriage as being between one man and one woman.

U.S. District Court Judge Vaughn R. Walker overturned Proposition 8 last August, ruling that its prohibition against same-sex marriage violated the U.S. Constitution. Now the case, Perry v. Schwarzenegger, reaches the second phase of a battle that will almost certainly wind up before the U.S. Supreme Court.

Proposition 8 proponents began arguments with doubts about one judge's objectivity on the case. On Dec. 2, Proposition 8 proponents requested that Judge Stephen Reinhardt recuse himself from the case since his wife, who was executive director of the American Civil Liberties Union of Southern California, provided legal counsel to those arguing against Proposition 8. Reinhardt, considered one of the most liberal judges in America, refused to disqualify himself in the case.

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The judges first examined the question of whether Proposition 8 proponents can legally defend the ballot measure at all. The complaint against it names California Gov. Arnold Schwarzenegger and Attorney General Jerry Brown as defendants in the case, but both Schwarzenegger and Brown refused to defend Proposition 8. So others stepped in to defend it instead-among them, Isabel Vargas, the deputy clerk and deputy commissioner of civil marriages for Imperial County, Calif., who would have to give same-sex marriages her stamp of approval if the courts overturn the measure.

If the 9th Circuit decides Proposition 8 proponents are not allowed to defend the case, it may derail the case entirely, enabling Schwarzenegger and Brown to reverse a constitutional amendment by simply refusing to act. Reinhardt pursued this line of questioning, asking if Schwarzenegger was effectively vetoing Proposition 8 by refusing to defend it. The question of standing "opens up a can of worms," said Joseph Infranco, senior legal counsel for the Alliance Defense Fund, but he said he believes the measure's proponents will prevail on the question.

The second half of the arguments focused on the constitutionality of Proposition 8. Charles Cooper, an attorney defending the ballot measure, reiterated the argument made earlier before District Court that the state has a "rational basis" in protecting the traditional definition of marriage since it has an interest in the procreation of children. He argued that society should protect heterosexual marriage because it has an interest in making sure children are born in wedlock to parents who have a biological connection to them.

At one point, Reinhardt interrupted Cooper, saying his argument sounded good for prohibiting divorce but demanded to know how it related to homosexual marriage. Cooper went on to argue that there are "distinguishing characteristics" between heterosexual and homosexual couples-characteristics that merit different treatment from the state.

Theodore Olson, an attorney representing opponents to Proposition 8, argued that the U.S. Supreme Court has decreed that the right to marry is an aspect of the right to liberty, the right to association, the right to privacy, and the right to identity. Both he and Therese Stewart, San Francisco's deputy city attorney, argued that the campaign against Proposition 8 did not have a "rational basis" but was based instead on animus toward homosexuals.

Both sides referenced several cases that will be key to deciding the matter before the court. In Loving v. Virginia, the U.S. Supreme Court said marriage is a "basic civil right" when it overturned laws prohibiting mixed-race marriages. But in Baker v. Nelson, the high court dismissed a case involving two homosexual students who applied for a marriage license in Minnesota.

The judges did not issue an immediate ruling following the three-hour hearing, which was broadcast live on C-SPAN, and no timetable has been set.

The randomly selected, three-judge panel representing the 9th Circuit consists of Jimmy Carter appointee Reinhardt, Bill Clinton appointee Michael Daly Hawkins, and George W. Bush appointee N. Randy Smith.


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