A three-judge panel heard oral arguments yesterday in the legal challenge against Proposition 8, the ballot measure that made same-sex marriage illegal in California. The arguments, made before the Ninth Circuit Court of Appeals, hinged on two things: First, whether the same-sex marriage opponents who filed the appeal actually have the standing to do so; and second, whether the ban is constitutional.
A federal district court ruled in August that the ban is unconstitutional. Opponents of same-sex marriage immediately appealed the ruling to the Ninth Circuit. But the actual defendant in the original case was the State of California — and Gov. Arnold Schwarzenegger and Attorney General Jerry Brown said they wouldn’t appeal. California’s new attorney general-elect, Kamala Harris, also said she won’t appeal the case.
The first half of the hearing focused on standing. The same-sex marriage opponents argued that, as proponents of the Prop 8 ballot initiative, they have standing in the case, although according to Mercury News, a lawyer offered no case precedent for that.
Judge Randy Smith, the most conservative of the three judges, suggested the panel ask the California Supreme Court for an opinion as to whether they have standing. Smith argued, according to the L.A. Times, that Schwarzenegger and Brown had effectively vetoed the proposition by not appealing the case — something they have no authority to do.
The second half focused on the constitutionality of the ban, with both sides making familiar arguments. Same-sex marriage opponents argued that the state has a “rational basis” on which to outlaw same-sex marriage because marriage is basically a vehicle for procreation.
Same-sex marriage supporters, lead by Ted Olson, argued that it’s a civil rights issue and that sexuality is not a choice.
Other legal questions in the case include whether the deputy clerk of Imperial County has the standing to appeal the district courts ruling, and whether that ruling affects all of California or just the two counties where the two plaintiff-couples tried to get marriage licenses.
According to NPR, the court could take between three months and a year to issue a ruling. The losing side is expected to appeal, first for a larger panel on the Ninth Circuit, and then to the Supreme Court.
Gay couples cannot marry in California now, as the Ninth Circuit granted a stay of the lower court’s ruling pending appeal.