Prop. 8 Appeal Papers Begin to Fly

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    NEWSLETTERS

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    As same-sex marriages became legal in California on June 16, conservative churches vowed to fight it and are spearheading passage of Proposition 8 which would change the state constitution to recognize only marriages between one man and one woman as legal.

    The sponsors of California's Proposition 8 have urged a federal  appeals court in San Francisco to uphold the ban on same-sex marriage,  arguing that a trial judge who struck down the measure last month "invented"  a right that doesn't exist.

          "There is no fundamental right to marry a person of the same sex,"  the Proposition 8 sponsors wrote in a brief submitted Friday evening to the  9th U.S. Circuit Court of Appeals.
         
    The filing was the opening brief in an appeal by the sponsors and  their committee, Protect Marriage, of an Aug. 4 decision in which U.S.  District Judge Vaughn Walker said the measure violated the U.S.  Constitution's guarantees of equal protection and due process.
         
    Walker ruled in a civil rights lawsuit filed by a lesbian couple  from Berkeley and a gay couple from Burbank. The couples are due to file  their response by Oct. 18.
         
    A panel of the appeals court will hear arguments on the case the  week of Dec. 6, and in the meantime, the higher court has stayed Walker's  ruling.
         
    Proposition 8, enacted by a 52 percent majority of California  voters in 2008, provided that "only marriage between a man and a woman is  valid or recognized in California."
         
    The measure's supporters said in their brief that while the U.S.  Supreme Court has recognized a fundamental right to marry, that right doesn't  extend to gay people because marriage is by definition the union of a man and  a woman.
         
    "Even a cursory review of Supreme Court precedent makes clear that  the fundamental right to marry recognized by the court is the right to enter  a legally recognized union only with a person of the opposite sex," the  sponsors wrote.
         
    The sponsors also contended Walker reached a "startling  conclusion" and ignored history and tradition when he found that there is no  good reason for excluding gay and lesbian couples from marriage.
         
    The reason for restricting marriage to opposite-sex couples, the  sponsors wrote, is "society's interest in increasing the likelihood that  children will be born to and raised by the couples who brought them into the  world in stable and enduring family units."
         
    The sponsors contend the legal standard for determining the  constitutionality of Proposition 8 is merely whether there was a rational  basis for the measure. They claim that basis is supplied by voters' wish to  encourage responsible procreation by heterosexual couples.
         
    American Foundation for Equal Rights president Chad Griffin, whose  organization sponsored the lawsuit, said in a statement that despite the  appeal, "the fact remains that Proposition 8 is unconstitutional, as was  proven conclusively and unequivocally through a full federal trial."
       
     "There is no getting around the fact that the (trial) court's  decision was based on our nation's most fundamental principles, and that the  Constitution does not permit unequal treatment under the law," Griffin said.
         
    Walker held a 13-day non-jury trial on the lawsuit in San  Francisco in January before issuing his 136-page ruling in August. The  proceeding was the nation's first federal trial on a state ban on same-sex  marriage.
         
    A previous five-year battle over same-sex marriage in California  centered on state rather than federal constitutional claims. That dispute  came to an end when the California Supreme Court last year upheld the voters'  right to enact Proposition 8 as a state constitutional amendment.
         
    The voter initiative overturned an earlier state high court ruling  that had found a state constitutional right to gay marriage.
         
    The three federal appeals court judges will hear the Proposition 8  case, and the exact date of the December hearing will not be announced until  six weeks beforehand.

    That panel's eventual ruling can be appealed to an expanded  11-judge panel of the circuit court and then to the U.S. Supreme Court.
     

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