Prop. 8 opponents make arguments to appeals court
October 20, 2010
Posted by Bob Egelko on sfgate.com:
"Gay rights advocates say a federal appeals court can restore the freedom to marry in California without deciding the constitutionality of the ballot measure that eliminated it - because, they argue, the measure's sponsors have no rights of their own at stake.
"If the court disagrees and allows Proposition 8's backers to defend the initiative, its opponents contend, the measure should still be struck down because its sole purpose was to classify gay and lesbian relationships as inferior.
"Lawyers for two same-sex couples, a gay rights group and the city of San Francisco filed their arguments Monday with the Ninth U.S. Circuit Court of Appeals in San Francisco, supporting a federal judge's ruling that overturned Prop. 8.
"The November 2008 initiative overturned a state Supreme Court ruling six months earlier that had allowed gay and lesbian couples to marry. Chief U.S. District Judge Vaughn Walker ruled Aug. 4 that Prop. 8 discriminated on the basis of sex and sexual orientation and violated the right to choose one's spouse.
"The appeals court has put Walker's decision on hold and will hear the case in December. Before taking up Prop. 8, however, the court must decide whether private sponsors of a ballot measure have the right to appeal a ruling overturning a state law.
"Gov. Arnold Schwarzenegger and Attorney General Jerry Brown are not challenging Walker's ruling. In a filing last month, Protect Marriage, the Prop. 8 campaign committee, argued that it had the authority to defend the measure 'on behalf of the people of California.'
"Sponsors of an initiative have a special status under state law, the organization said, and denying them a right to appeal 'would fail to respect the California people's initiative right.'
"But lawyers for the couples who challenged Prop. 8 noted that the U.S. Supreme Court has expressed doubt that an initiative's sponsors have the right to represent a state in court.
"They also said Protect Marriage has no private rights to defend in the case, because Walker found that marriage for same-sex couples would not harm opposite-sex couples or the institution of marriage.
"Prop. 8's sponsors 'do not contend that they would personally suffer an injury if gay men and lesbians were permitted to marry,' attorney Theodore Olson told the appeals court.
"If the court allows an appeal, Olson said, it should nonetheless uphold Walker's conclusion that banning marriage equality is an arbitrary act of discrimination.
"Protect Marriage argued in last month's filing that Walker had 'blinded himself' to the true purpose of marriage, 'responsible procreation and child-rearing.'
"Prop. 8's opponents countered that marriage has never been limited to child-bearing couples, that trial testimony found no connection between good parenting and sexual orientation, and that both sides' witnesses agreed that the children of gays and lesbians would be better off if their parents were allowed to marry.
"Olson said Prop. 8's campaign ads and proponents' speeches, which stressed the need to protect children from the normalizing of same-sex relationships, showed that the measure 'was motivated by a desire to relegate gay men and lesbians to second-class status.' "
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