Prop. 8 Appeal Goes Before Federal Court

Attorneys on both sides of the Proposition 8 debate are heading back to court on Monday to make arguments before the 9th Circuit Court of Appeals.

A three-judge panel is hearing an appeal of a federal judge's decision made in August. U.S. District Judge Vaughn Walker had declared Proposition 8 – California's amendment defining marriage as between a man and a woman – to be unconstitutional.

On Monday, the 9th Circuit will weigh whether proponents of the amendment have legal standing to challenge the ruling. Gov. Arnold Schwarzenegger and Attorney General Jerry Brown have both refused to appeal the decision, leaving and Imperial County to defend the measure.

The panel will also consider the long-debated issue of whether a ban on same-sex marriage violates federal constitutional rights.

According to the Alliance Defense Fund, which filed the appeal with's Andrew Pugno, what's at stake in the court battle is more than marriage – it's America's democratic system.

In 2008, 52 percent of California voters passed Proposition 8.

"In America, we should respect and uphold the right of the people to make policy choices through the democratic process – especially ones that do nothing more than uphold the definition of marriage that has existed since the foundation of the country and beyond," said ADF Senior Counsel Brian Raum in an earlier statement.

Last year, the California Supreme Court rejected lawsuits against the amendment, ruling that it was not an illegal constitutional revision by the people nor unconstitutional.

Top litigators Theodore B. Olson and David Boies, however, filed a lawsuit in federal court just before the state high court ruling. Walker ruled in August in their favor, saying Proposition 8 is irrational because it singles out gays and lesbians for unequal treatment.

"In the absence of a rational basis, what remains of proponents' case is an inference, amply supported by evidence in the record, that Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples," Walker concluded.

"Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians," he added. has argued that Walker's ruling "defames as anti-gay bigots not only seven million California voters, but everyone else in this Country, and elsewhere, who believes that the traditional opposite-sex definition of marriage continues to meaningfully serve the legitimate interests of society – from the current President of the United States, to a large majority of legislators throughout the Nation, both in statehouses and in the United States Congress, and even to most of the scores of state and federal judges who have addressed the issue."

The three judges randomly selected to hear the case on Monday are Michael Daly Hawkins, an appointee of President Bill Clinton, N. Randy Smith, named to the court by President George W. Bush, and Stephen Reinhardt, a California liberal appointed by President Carter.

Proposition 8 proponents have asked Reinhardt to recuse himself from the legal proceedings because of his wife's active opposition to Proposition 8. He is married to Ramona Ripston, the longtime head of the Southern California office of the American Civil Liberties Union which filed an amicus brief in the appeals case, urging the court to uphold Walker's ruling. Reinhardt refused to bow out and said that he could remain impartial.

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