Federal appeals court hears Prop 8 arguments

Senior Circuit Judge Michael Daly Hawkins, left, Circuit Judge Stephen R. Reinhardt, center, and Circuit Judge N. Randy Smith hear arguments during a hearing in the Ninth Circuit Court of Appeals, Monday, Dec. 6, 2010, in San Francisco. The federal appeals court in San Francisco was scheduled to hear two hours of arguments Monday about the voter-approved ban known as Proposition 8. A trial court judge overturned the measure as a violation of gay Californians' civil rights in August. (AP Photo/Eric Risberg, Pool) (Prop 8 hearing in San Francisco)

December 6, 2010 7:09:46 PM PST
The fight over California's same-sex marriage ban reached the next legal level Monday when it went before a federal appeals court during a nationally televised hearing in San Francisco.

Courthouses have become all too familiar for the plaintiffs trying to overturn Prop 8.

Their fate is now in the hands of a three-judge appeals court panel, which must decide whether to uphold a district judge's ruling that the voter's 2008 ban on same-sex marriage is unconstitutional. The panel first needs to decide if Prop 8's sponsors even have the legal right to argue the case, since the state's top lawyer has decided not to.

The judges also seemed skeptical of an effort by Imperial County to intervene, but at least one worried about having no one to defend Prop 8.

"If the state doesn't defend it, they are throwing in the towel," U.S. Court of Appeals Judge Stephen R. Reinhardt said.

The judges are also reviewing the merits of the case, whether Prop 8 violates the constitutional rights of gays and lesbians.

"This has stripped gays of the most important right as defined by the U.S. Supreme Court," plaintiffs' attorney Theodore Olson said.

"Is it one for the people to define or does the government take that out of the hands of the people," Prop 8 attorney Charles Cooper said.

Lawyers on both sides of the case were reluctant to judge the judges, but the plaintiffs say they are hopeful

"The judges are very thoughtful in the questioning of the lawyers," plaintiff Sandy Stier said.

"This is a turning point. I think in 2030 years from now people are going to wonder why this was necessary," Plaintiffs' attorney David Boies said.

"We believe people of goodwill can disagree in good faith on this question," Cooper said.

The lawyers are praising the quick pace of the legal proceedings and though there's no timetable for this decision, the case could make its way to the U.S. Supreme Court by 2012.