Prop. 8 still waiting at the altar

No decision yet, but judges may be leaning toward marriage equality

Ann Gaffney Shores knows that only fools try to predict judicial rulings. But the Corte Madera lawyer left this week's federal appeals court hearing on the constitutionality of a voter-approved same-sex marriage ban optimistic that marriage equality moved a legal step closer to becoming a permanent reality in California.

"The judges are probably inclined to give us a victory to some extent," said Shores, who arrived with her brother and his husband for the 9th U.S. Circuit Court of Appeals hearing nearly three hours before its start on Dec. 6 so they could get seats in the courtroom with marble mosaics, columns and stained-glass windows. "I have no doubt we will see marriage equality in my lifetime."

For nearly two-and-a-half hours on Monday in a televised proceeding, three black-robed judges probed lawyers on both sides about case law relating to whether voters could exclude gay men and lesbians from marrying. Two of the judges posed questions that might have signaled their openness to affirming an August ruling overturning Proposition 8. Voters approved the same-sex marriage ban just weeks after the California Supreme Court decreed that homosexuals could wed in the state. More than 18,000 same-gender couples, including Shores' brother, tied the knot while it was legal in California, between June and November 2008.

When Charles Cooper, the lawyer defending the ban, tried to explain to the appellate panel his belief that gay marriage threatens societal interests because children raised by single parents have "poorer outcomes," presiding Judge Stephen R. Reinhardt of Los Angeles cut in. "That sounds like a good argument for prohibiting divorce," the judge known as the court's liberal lion said, eliciting laughter. "But how does it relate to having two males or two females marry each other and raise children and form a family unit where children have a happy, healthy home?"

Judge Michael Daly Hawkins, an Arizona-based Clinton appointee, asked Cooper a series of pointed questions, which at least hinted at a belief that laws evolve with the times, and that the time for gay men and lesbians to be able to marry may have arrived.

"Could the people of California reinstitute school segregation by a public vote?" Hawkins asked.

"No, your honor," Cooper replied. "That would be inconsistent with the United States Constitution."

"But they probably could have done that in 1870 or '80 or '90, right?" Hawkins continued.

"Ah, very possibly, your honor, yes."

"How's this different?" Hawkins asked.

"This is nothing like, for example, the racial restrictions at issue in [the Supreme Court case Loving, where there is simply no legitimate rational basis whatsoever to deny the right of a mixed-race couple to marry."

According to Cooper, the rational basis for excluding same-gender couples from marriage is that they cannot naturally have children—the purpose, he says, of marriage.

A gay couple who live in Burbank and would like to wed before having children and a lesbian couple who live in Berkeley with their children filed the federal case against Proposition 8 because they want to marry. Their lawyers, Theodore Olson and David Boies, a powerhouse legal team who opposed one another in the 2000 Bush v. Gore battle for the presidency, contend Proposition 8 has no more rational basis than the anti-miscegenation law the U.S. Supreme Court struck down in 1967 in Loving v. Virginia. They also contend that voters had no more right to amend the California Constitution to confine marriage to opposite-sex couples than they would to try to amend it to reinstitute school segregation.

If the state took Cooper's procreation argument to the extreme, Olson said, "California could say, 'We're overpopulated, and we'll deny people the right to marry.' "

Proposition 8, Olson argued, violates the equal-protection and the due-process clauses of the 14th Amendment.

"What this case comes down to is that California has built a fence around its gay and lesbian citizens, and it's built a fence around marriage," Olson told the randomly selected three-judge panel. "It won't let them out of that fence into the marriage fence. That is a violation of the equal-protection and due-process clauses."

Ann Gaffney Shores knows all about Loving v. Virginia. She was 10 years old in 1967, when the U.S. Supreme Court outlawed race-based marriage restrictions. Shores' Chinese mother and white father had to consult a lawyer before buying a house in Missouri seven years earlier.

If the federal Proposition 8 case makes it to the U.S. Supreme Court, it could legalize gay marriage throughout the U.S. the way Loving v. Virginia legalized interracial marriage.

Both sides in the Proposition 8 case have said they would appeal to the nation's highest court if they fail to prevail in the lower court. But all three judges questioned whether Cooper and the Proposition 8 supporters had legal standing to appeal the matter in the first place. If the panel determines that Proposition 8 supporters lack standing to bring the case, it could uphold U.S. District Court Judge Vaughn Walker's August ruling overturning Proposition 8. Then, if the U.S. Supreme Court concurs that the initiative's supporters lack standing, same-sex marriage could again be legal in California.

Ordinarily, the governor and the attorney general defend voter initiatives in court. But both Arnold Schwarzenegger and Jerry Brown refused to defend the same-sex marriage ban. All three judges expressed concern that no government official came forward to defend Proposition 8. The last time a California attorney general refused to defend a voter initiative was when a 1964 ballot proposition amended the state constitution to allow housing discrimination.

Even the panel's most conservative judge, N. Randy Smith, a George W. Bush appointee who lives in Idaho and was born and educated in Utah, questioned Proposition 8's rational basis.

"What is the rational basis for an initiative when California law really says that homosexual couples have all the rights of marriage, all the rights of child-rearing, all the rights that others have?" Smith asked Cooper. "We're left with a word—marriage."

"You are left with a word that is essentially an institution," Cooper responded. "If you redefine the word, you change the institution. You cannot separate the two. The issue here is whether it will be redefined to be a genderless institution that bears little or no relationship to the historic purpose of marriage."

Therese Stewart, San Francisco's chief deputy city attorney, argued against Proposition 8 before the appellate court on behalf of San Francisco. "Same-sex couples do procreate," said Stewart, a lesbian who has a child and lives in Novato with her wife, Carole Scagnetti. "They don't do it the old-fashioned way."

"We are talking about a label, but it does have great meaning," she said. "Equal protection doesn't allow the state to enact a measure that some people are unworthy."

The judges gave no indication about when they would rule. They did discuss asking the California Supreme Court to weigh in first on the question of whether Proposition 8 supporters have legal standing to have appealed to the federal appellate court. If the California court says they do have standing, attorney Boies said he would return to the 9th Circuit to argue again that they do not.

If the attorney general and the governor refuse to appeal, and no one else is allowed to appeal, "haven't they effectively nullified the initiative?" Judge Reinhardt asked. "If the state does not defend it, that's just tossing in the towel."

Contact Ronnie Cohen at

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Like this comment
Posted by Sue
a resident of Danville
on Dec 12, 2010 at 12:19 pm

Marriage is between a MAN and a WOMAN. If they want same sex get- togethers, call it something else, but MARRIAGE is between a MAN and a WOMAN.

This was already brought to the voters and voted on, why are we even wasting time and money to talk about this? The voters voted already, let the verdict be what the "people" voted on.

Like this comment
Posted by Maria
a resident of Another Pleasanton neighborhood
on Dec 12, 2010 at 12:37 pm

That's why civil unions, not marriage, should be the standard. Web Link (<-- 3 years old but still relevant)
Preserve the sanctity of marriage, but don't deny couples benefits and legal rights.

Like this comment
Posted by Jeff West
a resident of Birdland
on Dec 12, 2010 at 7:03 pm

There's nothing in the Constitution that singles out homosexuals as a lesser class of Americans--"We the People" encompasses all of our citizens. And the aversion to homosexuality that some (but not all) churches promote has no legal standing, according to the First Amendment. If a church finds itself at odds with the Constitution on a legal point, the Constitution takes precedence. As to the "sanctity" of marriage, there's no such thing. 50% of American marriages end in divorce, and the Bible states that divorce is a sin punishable by death by stoning. When will we see these holier-than-thou opponents of Proposition 8 stone a divorcing heterosexual couple to death?

Like this comment
Posted by Jeff
a resident of Amberwood/Wood Meadows
on Dec 12, 2010 at 9:35 pm

This is to Sue. That was the most common, weak response you could have put. "marriage is between a man and a woman." thats the best you got? come on, put somethin new on the table, I have been hearing that sentence over and over for the past year or two. Im gay, and darn proud of it! I dont want to marry anyone, but I think that so many people want to vote on stuff that doesnt affect them. If you aren't gay, then dont marry a gay person!

Like this comment
Posted by Red
a resident of another community
on Dec 12, 2010 at 10:27 pm

Sue, that is NOT a valid argument. It didn't hold up with Judge Walker and it won't hold up in the Ninth District. And should it be brought to the Supreme Court, I doubt it will hold up there. There has YET to be provided a LEGITIMATE reason for banning gay couples from marrying. NO ONE has been able to provide ONE GOOD REASON for banning gay couples from marrying.

Just because 'the voters decided' doesn't make it right. The Constitution protects the minority from the tyranny of the majority. The voters were bombarded with misleading and outright false messages from private interest groups who simply didn't like the idea of gay couples.

Like this comment
Posted by Jim
a resident of Canyon Creek
on Dec 12, 2010 at 11:10 pm

I think we should take a vote on Sue's marriage. I cast 1 vote to annul it.

Like this comment
Posted by Wayne
a resident of another community
on Dec 13, 2010 at 4:52 am

Marriage is about two people who love each other coming together in a way that afirms there love and devotion. It is NOT about having children. Having children is a completely separate issue. As we all know you don't need to be married to have children. Considering how many single mothers are out there you how do these people think they have children? Immaculate Conception!!!

Like this comment
Posted by Jerry
a resident of Danville
on Dec 13, 2010 at 5:03 am

Sanctify means the quality of being holy. Since our laws are not based on religion, whether or not a church considers marriage to be sanctified or not doesn't come into play here. If a church doesn't want to sanctify a gay marriage, fine. But that doesn't mean they should be able to deny or define civil marriage.

Like this comment
Posted by wayne
a resident of Deer Oaks/Twelve Oaks
on Dec 13, 2010 at 6:44 am

In the Prop 8 campaign, California voters were made fools, who fell for the "studies" cited by the Christian Churches and the religious right. When those institutions got into Federal District Court, they were forced to admit that no such studies existed and quickly abandoned their lies. Had the 7 million voters known of this at the start, you can bet their votes would have been different!

Like this comment
Posted by Joseph Duch√Ętelet
a resident of Amador Estates
on Dec 13, 2010 at 8:04 am

am living in Belgium. Gay marriage and adoption of children is legal here.
I tried to forward the following contribution to the Prop 8 defenders. No ACK yet

Web Link
it opposes the claim that homosexuality is 'biologic' hence never avoidable and cannot be learned.
Accepting this as a truth on which State law has to be built is an ideological position affecting the neutrality of the State.
Traditional marriage between a man and a woman is open to every man and every woman.
It would never have existed if sexual procreation was not part of our biological heritage.
Samesex unions and those mariages are biologically different.
Treating different situations unequally is not necessarily unjust discrimination and treating them equallly can be an injustice/

Redefining marriage, extending it to gay and lesbian couples, is not neutral. Those couples are after a symbolic meaning to be given by the State to their union and sexuality. Giving such a symbolic meaning in the name of all citizens, also of those that don't approve of such sexuality or unions is in fact imposing a State religion or philosophy.
It is clear that churches, philosophical organizations may give to gay and lesbian couples a symbolic and liturgical recognition of their love and faith. They may even call it marriage. If a community member does not agree, one can change one's church affiliation.
Such an approach would have avoided that in the Netherlands State officials did lose their job in refusing to wed same-sex persons.

Like this comment
Posted by Chuck Anziulewicz
a resident of another community
on Dec 13, 2010 at 8:49 am

Often I hear it said, "Let Gay couples have their legal benefits, just don't call it MARRIAGE."

OK, then. Let's suppose there's either a Supreme Court decision or a Constitutional amendment saying that Straight (i.e. heterosexual) couples can get "married," and Gay couples can have "civil unions," but otherwise all the legal benefits would be the same at all levels of government.

Would you support that? And if so, what you have you won? All you have for yourself is a word, whereas Gay couples have essentially all the legal benefits that go with that word. And they will say, "We got married in Cancun," or "We got married in Niagara Falls," because there won't be any language police roaming around forbidding them from using the word in conversation.

And if you can't support "civil unions," what Constitutional justification can you make for denying law-abiding, taxpaying Gay couples the exact same legal benefits that Straight couples have always taken for granted?

Like this comment
Posted by SteveP
a resident of Parkside
on Dec 13, 2010 at 9:11 am

SteveP is a registered user.

Get used to the term civil union, because the Supreme Court (where this will eventually end up) will never change the meaning of marriage to assuage militant deviants.
If you're really concerned about your 'rights' (versus expanding the meaning of the term 'marriage'), then fight the battle to gain full legal status for your civil union.
Your pushing people to 'accept' or 'tolerate' your lifestyle will not change, even if you call it marriage.

Like this comment
Posted by Janna
a resident of Dublin
on Dec 13, 2010 at 9:36 am

Janna is a registered user.


Ever heard the phrase "live and let live?"

Like this comment
Posted by Les
a resident of another community
on Dec 13, 2010 at 1:00 pm

Sue said,
> let the verdict be what the "people" voted on.
The people just voted November 2nd for the only officials that have standing on Prop. 8. They voted for Gov. Jerry Brown & Kamala Harris, both of whom had clearly and emphatically promised NEVER to appeal.
The people have decided who should represent them. Please don't nullify THIS.

Regardless, your fundamental rights and those of your fellow Americans are secure:
"The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections." --Justice Jackson, West Virginia State Board of Education v. Barnette, Majority Opinion

Like this comment
Posted by Gina Channell-Allen
president of the Pleasanton Weekly
on Dec 13, 2010 at 1:10 pm

Gina Channell-Allen is a registered user.

This thread was getting a bit out of hand with name-calling and foul language, so it is restricted to registered users only now.

Like this comment
Posted by dublinmike
a resident of Dublin
on Dec 14, 2010 at 11:26 pm

dublinmike is a registered user.

All "marriages" should be civil unions by the government, regardless of sexual persuasion. Then, a group or church may determine if a couple may get "married" within their organization.

Like this comment
Posted by thewaever
a resident of Amador Estates
on Dec 16, 2010 at 7:31 am

thewaever is a registered user.

To anyone who thinks that same-sex marriage is something you can vote on, "fundamental rights may not be submitted to a vote; they depend on the outcome of no elections," as Judge Walker pointed out in August's Prop 8 trial's Findings of Fact & Conclusions of Law (p.116).

The votes of ignorance & hatred mean nothing. THIS is the purpose of the court system: to protect the persecuted minority from being lynched tyranny of the mob-majority.

It's very clear that Prop 8 was designed specifically to lynch homosexuals. I'm glad to see the court system doing its job.

Like this comment
Posted by thewaever
a resident of Amador Estates
on Dec 16, 2010 at 7:40 am

thewaever is a registered user.

Also, I just want to point out that no state can grant ALL of the legal rights that go along with marriage, because no state can grant the FEDERAL rights & benefits of marriage.

Until same-sex couples receive FEDERAL level rights & benefits of marriage, then civil unions only serve to explicitly create second-class citizens.

Civil unions ARE NOT the answer. They are NOT the equal of marriage.

There is only one thing equal to marriage & that is marriage. Marriage is an inalienable, fundamental right. SCOTUS has set precedence on this matter.

There is only one conclusion: same sex marriages.

Sorry, but further commenting on this topic has been closed.

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