Proponents on Monday argued before a panel of federal judges that heterosexual marriage is an age-old institution that is vital to society.
A three-judge panel in the 9th Circuit Court of Appeals held a two-hour hearing on California's Proposition 8, pondering the importance of heterosexual relationships and whether voters have the right to legislate the definition of marriage or if the Constitution bars them from doing so.
Charles Cooper, attorney for the proponents of Proposition 8, quoted the U.S. Supreme Court in arguing that heterosexual marriage is "fundamental to the very existence and survival of the human race."
"The traditional definition of marriage has existed throughout the existence of this country," he told the appeals court. "It has been the governing definition and understanding of marriage in this state since its founding and basically throughout the country and throughout the world, for all time.''
Passed in 2008 by 52 percent of California voters, Proposition 8 defines marriage as between a man and a woman. In August, U.S. District Judge Vaughn Walker ruled the amendment to be unconstitutional, saying that moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians.
At the heart of the issue now before the appeals court is whether voters have the right to decide the definition of marriage through the democratic process or whether the Constitution takes the decision out of their hands.
The 9th Circuit Court justices alluded that the voter referendum may present a challenge to the14th amendment allowing all people the right to "life, liberty and property without due process of law."
Justice Michael Hawkins questioned if the public could re-institute segregation through a referendum. Cooper said that was not possible because it is inconsistent with the Constitution.
Cooper contended that proponents of the state amendment are not trying to take rights away from homosexuals, but rather are upholding the age-old institution of traditional marriage as one that is important to society.
"If there is any rational basis to the traditional definition of marriage, then that definition should be upheld," he argued during the nationally televised hearing.
Cooper maintained that there is a rational right for marriage because "sexual relationships between men and women produce children."
By contrast, opposing counsel Theodore Olson said denying gays the right to wed constitutes discrimination that cannot be justified under any circumstances.
At the beginning of the hearing, opponents of same-sex marriage struggled to establish legal standing or authority. Their attorney encouraged the court to look to other cases where proponents were given the opportunity to represent when state officials refused to defend a voter-approved amendment.
Both Gov. Arnold Schwarzenegger and the state's attorney general, Jerry Brown, refused to appeal Walker's decision.
The justices questioned Cooper if he tried to compel the California attorney general to take the case or give them standing to proceed with an appeal. Cooper said he did not.
The opposing counsel argued that there is no legal precedent giving proponents the right to represent the state in the appeal.
The panel hearing the case consisted of Justices Hawkins, Randy Smith and Stephen Reinhardt, who refused to recuse himself despite his connection to the American Civil Liberties Union. The ACLU, which opposes Proposition 8, filed an amicus brief to the court to uphold a previous injunction of the referendum.
The justices are likely to decide on the proposition next year. Both sides are expected to appeal the ruling if the decision is not in their favor.