The three-judge panel posed questions to both sides for more than two hours and didn't give much indication as to how or when they might rule, although the questioning did appear to follow each judge's ideology.
At issue is California Proposition 8, a constitutional amendment passed by voters of that state in 2008 that defines marriage as being between one man and one woman. Its passage reversed a state Supreme Court ruling that had legalized "gay marriage."
A lower court this year ruled Prop 8 unconstitutional, and if that decision is allowed to stand, the statutes and constitutional amendments in the 45 states that define marriage in the traditional sense could be in jeopardy. Five states recognize "gay marriage."
California is one of 31 states that have decided the issue at the ballot, with the traditional definition winning in each instance.
Opponents of "gay marriage" warn that its legalization will negatively affect all of society, impacting everything from the tax-exempt status of religious organizations to the way private businesses are operated to what is taught in elementary schools.
"The people of California, and Americans throughout the country, are engaged in an earnest and profound debate about the meaning, purposes and definition of marriage," argued Charles Cooper, the attorney for ProtectMarriage.com, the group behind Prop 8. "... This court is presented with this fundamental question: It is whether the definition of marriage -- that momentous issue -- is one for the people themselves to resolve through the democratic process, as they did in enacting Proposition 8, or whether our constitution takes that issue essentially out of their hands."
The justices -- especially Carter nominee Stephen Reinhardt and Clinton nominee Michael Daly Hawkins -- questioned whether the right of the people to amend the constitution has limits. For instance, Hawkins asked, could the people also have amended the constitution to allow segregation?
Hawkins and Reinhardt also asked Cooper to distinguish what California had done and what Colorado voters did in the 1990s when they passed a constitutional amendment that prevented enforcement of laws protecting homosexuality. That Colorado amendment was reversed in the 1996 Supreme Court case Romer v. Evans.
Cooper responded that the uniqueness of heterosexual marriage and its ties to procreation provided California with a rational basis to pass Prop 8.
"The key reason that marriage has existed at all in any society and at any time is that sexual relationships between men and women naturally produce children," Cooper said. "Society has no particular interest in a platonic relationship between a man and a woman, no matter how close, how committed it may be.... But when a relationship between a man and a woman becomes a sexual one, society immediately has a vital interest in that.
"Society needs the creation of new life for the next generation," Cooper added. "But secondly, its vital interests are actually threatened by the possibility that an unintentional and unwanted pregnancy will mean that the child is born out of wedlock and is raised by, in all likelihood, its mother alone.... Society will have to step in and assist that single parent, in all likelihood."
Based on questioning, Reinhardt seemed to be the most likely to vote to overturn Prop 8, and Bush nominee N. Randy Smith the least likely. Hawkins asked tough questions of each side and could be a potential swing vote.
The justices also must decide whether ProtectMarriage.com has the legal standing to represent Prop 8 in federal court. Led by Democratic Attorney General Jerry Brown -- who supports "gay marriage" -- the state of California chose not to defend Prop 8.
Attorney Theodore Olson, who is representing the same-sex couples who brought the case, argued that California passed a discriminatory amendment.
"California has engraved discrimination on the basis of sex and sexual orientation into its fundamental governing charter," Olson argued. "... This proposition marginalized and stripped over a million gay and lesbian Californians of access to what the Supreme Court of the United States has repeatedly characterized as the most important relation in life."
Olson had barely begun speaking when Reinhardt asked, "Are you suggesting ... that a gay marriage is required by the Constitution of the United States?"
Olson answered, "What is required by the Constitution of the United States is the fundamental right of its citizens to marry."
Olson consistently argued that Loving v. Virginia -- the 1967 Supreme Court decision that overturned laws that had prevented whites and blacks from marrying -- applies to Prop 8.
"California has built a fence around its gay and lesbian citizens, and it's built a fence around the institution of marriage, which the Supreme Court says -- not based upon sex or procreation or anything else -- is the most important relation in life," Olson said. " ... That is a violation of the Equal Protection Clause and it's a violation of the Due Process Clause."
Cooper, though, rejected any parallels to Loving.
"We know that if Mr. Loving had desired to marry Mr. Jeter, that the case would not have come out the same way," Cooper said. "We know that with certainty, because Baker v. Nelson rejected that very claim, and it rejected that claim on the heels of Loving."
Baker v. Nelson was the nation's first "gay marriage" case and was dismissed by the U.S. Supreme Court in 1972 "for want of substantial federal question." It originated in Minnesota.
The justices asked other questions: Would Prop 8 have had a better chance of being upheld if it had passed before the state high court had issued its ruling? Does California's law providing for domestic partnerships -- which grant same-sex couples all the legal benefits of marriage except the name -- make it irrational for California not to take the next step and legalize "gay marriage"? Is a state that does not have civil unions or domestic partnerships in a better legal position to prohibit "gay marriage" under a rational basis test?
Cooper repeatedly argued that the unique nature of traditional marriage provided California with a legitimate reason to pass Prop 8.
"The question is whether the state of California has a rational reason for drawing a distinction between same-sex couples who cannot -- without the intervention of a third party of the opposite sex -- procreate, and opposite-sex couples who not only can procreate but can do so unintentionally and create unwanted pregnancies," Cooper said. "That is not a phenomenon that exists with respect to same-sex couples."
Michael Foust is an assistant editor of Baptist Press. For information about Prop 8, visit ProtectMarriage.com.
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