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California Appeals Court Considers Fate of Homosexual Marriage Ban

Lawyer Theodore Olson, argues against ban on homosexual marriage in a San Francisco court, 06 Dec 2010

A three-judge panel in California is considering the fate of Proposition 8, a citizen-backed measure approved in 2008 that bans homosexual marriage. In August, a federal judge blocked the law. An appeals court panel in San Francisco is being asked to decide the issue, but the dispute is unlikely to end in the near future.

Two former courtroom adversaries, lawyers Theodore Olson and David Boies, were on opposite sides 10 years ago when they argued over the outcome of the disputed 2000 presidential election. Now they are on the same side - urging the court to overturn Proposition 8, a voter-backed initiative that defines marriage as a union between a man and woman.

The measure passed with 52 percent of the vote. But Olson told the court in a nationally televised hearing that the ban enshrines discrimination in California law.

"This proposition marginalized and stripped over a million gay and lesbian Californians from access to what the Supreme Court of the United States has repeatedly characterized as the most important relation in life," said Olson.

Boies and Olson represent two same-sex couples who filed a lawsuit against the measure, arguing that it violates their rights to due process and equal treatment under the law. A federal district judge agreed and blocked the law in August, but no same-sex unions have taken place since, pending the outcome of the case.

California's outgoing governor, Arnold Schwarzenegger, and the state's attorney general and governor-elect, Jerry Brown, as well as newly elected attorney general Kamala Harris say they will not challenge the judge's action.

But lawyers for the sponsors of Proposition 8 and for a California county hope to argue for the gay-marriage ban. Lawyers Boies and Olson want to prevent that, saying only California officials can defend the disputed law, and that they have decided to stay out of the case.

Lawyers are also asking the court to rule on the law's validity. Attorney Charles Cooper, who represents the sponsors of Proposition 8, says it reflects the will of the people of California.

"This court is presented with, in our submission, 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," said Cooper.

Cooper says society has an interest in regulating marriage.

"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," he said.

Theodore Olson argues that same-sex couples may have children, while many partners of the opposite sex do not. He says that even childless couples have the right to marry, regardless of their gender.

Whatever the outcome of the case, the question of gay marriage in California will not be settled soon. Both sides promise to take appeals as far as the US Supreme Court.