Same-Sex Marriage Is an Invented Right: Prop. 8 Supporters

Saturday, Sep 18, 2010  |  Updated 10:15 AM PDT
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Same-Sex Marriage Is an Invented Right: Prop. 8 Supporters

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Jodie Vandermark-Martinez places a ring on the finger of her partner Jessica during a wedding ceremony on the steps of the Polk County Administration Building April 27, 2009 in Des Moines, Iowa. Today was the first day gay couples were allowed to marry in Iowa following an April 3, 2009 ruling by the Iowa Supreme Court which declared a legislative ban on same-sex marriage unconstitutional. (Photo by Scott Olson/Getty Images)

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

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

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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