Prop 8. gay marriage ban to be argued in federal appeals court
The long-running fight over gay marriage in California heads to a federal appeals court Monday. A panel of the Ninth US Circuit Court of Appeals must decide whether a federal judge was correct in ruling that the US Constitution protects the right of gay and lesbian couples to marry.
The long-running fight over gay marriage in California heads to a federal appeals court on Monday for two hours of high-stakes argument that could set the stage for an eventual showdown at the US Supreme Court.Skip to next paragraph
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A three-judge panel of the Ninth US Circuit Court of Appeals in San Francisco must decide whether a federal judge was correct when he ruled in August that the US Constitution protects the right of gay and lesbian couples to marry.
The federal judge said a state effort to restrict marriage to heterosexual couples “unconstitutionally burdens the exercise of the fundamental right to marry” guaranteed to all persons.
The case has national implications because if the US Constitution protects a fundamental right to gay marriage, no state would be permitted to limit marriage to only those of different genders.
Currently, 45 states have laws or constitutional provisions restricting marriage to one man and one woman. Five states – Massachusetts, Connecticut, Iowa, New Hampshire, and Vermont – and the District of Columbia recognize same-sex marriage.
In their appeal to the Ninth Circuit, supporters of the ban argue that the federal judge ignored a long line of existing legal precedents upholding regulation of marriage as between a man and a woman.
“Every appellate court, both state and federal, to address the validity of traditional opposite-sex marriage laws under the United States Constitution has upheld them,” writes Charles Cooper in his brief to the court.
Opponents of the ban on gay marriage counter that recent decisions by the US Supreme Court have undercut the vitality of those earlier decisions.
“Fourteen times the Supreme Court has stated that marriage is a fundamental right of all individuals,” writes Theodore Olson in his brief opposing the ban.
At the center of the case is a state-wide ballot initiative called Proposition 8. The measure amended the state constitution to read: “Only marriage between a man and a woman is valid and recognized in California.”
The ballot initiative came in reaction to a California Supreme Court decision in 2008 striking down a state law – passed by voter initiative in 2000 – that restricted marriage to opposite-sex couples. The California high court ruled that the restriction violated the state constitution.
Opponents of gay marriage responded with another ballot initiative (in November 2008) seeking to explicitly spell out in the California constitution that marriage is between a man and a woman. The measure passed with 52 percent of the vote, effectively overruling the 2008 state supreme court decision.