SAN FRANCISCO (AP) — A line of questioning at an appeals court hearing over California’s gay marriage ban suggested the three judges could issue a decision that would legalize same-sex marriage in that state but leave intact bans in other western states under the court’s jurisdiction.
The 9th U.S. Circuit Court of Appeals heard nearly three hours of arguments Monday during a televised hearing that reached a nationwide audience anxious for a final decision on whether voter-approved Proposition 8 and similar same-sex marriage bans violate the U.S. Constitution.
The judges appeared troubled over whether they could recognize marriage as a civil right for all same-sex couples or only those in states that already grant gays the rights of marriage without the title.
Theodore Olson – who argued a portion of the case on behalf of the two same-sex couples who sued to overturn Proposition 8 and persuaded a lower court to strike it down – said denying gays the right to wed constitutes discrimination that cannot be justified under any circumstances.
“What this comes down to, it seems to me, is that California has built a fence around its gay and lesbian citizens and it has built a fence around the institution of marriage, which the Supreme Court says, not based on procreation or anything else, is the most important relationship in life,” Olson said.
His oratory prompted Judge Stephen Reinhardt, the panel's most liberal member, to ask if Proposition 8 were a unique case because it amended the California Constitution to outlaw same-sex marriages five months after the state Supreme Court had legalized them.
“Your closing speech would require a holding that any state that did not permit gay marriage would be in violation of the Constitution,” the judge said. “There is a possibility, I think in this case, that Proposition 8's withdrawal of the right of marriage from gays and lesbians is unconstitutional under the circumstances that they enjoyed that right, that they are given every aspect of marriage and the only thing taken away is the honorific of marriage.”
Full story: AP Virginia News | nvdaily.com
Paul Elias and Lisa Leff – Associated Press