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Prop. 8: judges express doubts about California gay marriage ban

Supporters of Prop. 8, the California gay marriage ban, face tough questioning in hearing before an appeals court. They are seeking a reversal of a federal judge's ruling against Prop. 8.

By Staff writer / December 6, 2010

Viewers watch a broadcast of arguments in a federal appeals court hearing about Prop. 8, California's voter-approved ban on gay marriage, in a courthouse at the Ninth Circuit Court of Appeals in San Francisco Monday.

Jeff Chiu/AP

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Washington

Proponents of a ban on same-sex marriage in California are facing an uphill battle in their effort to reverse a federal court ruling last summer declaring that gay and lesbian couples enjoy a fundamental right under the US Constitution to marry.

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Lawyer Charles Cooper encountered tough questioning from a three-judge panel of the Ninth US Circuit Court of Appeals in San Francisco on Monday. The three-hour session was broadcast live nationwide on C-SPAN.

Mr. Cooper urged the appeals court judges to overturn a federal judge’s decision in August striking down Prop. 8, which amended the state’s constitution to restrict marriage to one man and one woman.

The ballot initiative was undertaken to overturn a 2008 California Supreme Court decision finding, for the first time, that the state constitution recognized a right for same-sex couples to marry. The ruling resulted in 18,000 gay and lesbian marriages in California.

But that window of opportunity closed later in 2008 when California voters passed Proposition 8. The constitutional amendment banning gay marriage was approved by 52 percent of the vote.

In overturning the ballot initiative, US District Judge Vaughn Walker ruled that the effort violated the US Constitution.

Cooper told the appeals court that the judge had failed to follow existing precedent. “There have been eight courts that have addressed this issue and all eight have upheld the traditional marriage laws,” he said.

Circuit Judge Stephen Reinhardt took issue with Cooper’s characterization of the case. He said the relevant issue is how the court should respond in a situation in which a protected class of individuals – gay and lesbian couples – who have enjoyed a right to marry and have then had that right taken away from them.

“If you are taking a right from a particular class without any reason … then you cannot do it,” Judge Reinhardt said. “You have to take into account all the circumstances.”

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