Calif. gay marriage fight returns to court

Tensions between Americans who are for and against same-sex marriage played out in front of the camera Monday in a California courtroom.

Three U.S. judges at a federal appeal court in San Francisco reconsidered the state's ban on gay marriage. In 2008, Proposition 8 outlawed gay marriages in California, five months after they were legalized by the state's Supreme Court.

The proposition was approved by 52 per cent of California voters in a referendum and passed by the state legislature. But earlier this year a federal judge tossed it out on the grounds that it's unconstitutional.

This is the beginning of the appeal, and the three-judge panel of the U.S. 9th Circuit Court of Appeals heard oral arguments not just on the substance of the legal issues surrounding the case, but also on whether this case should even be allowed to be appealed.

Can treat differently: lawyer

Attorney Charles Cooper, who represents sponsors of the ban, argued the state could treat same-sex couples differently when it comes to marriage without running afoul of the constitution because "sexual relationships between men and women naturally produce children."

"Society has no particular interest in a platonic relationship between a man and a woman no matter how close it might be, or emotional relationships between other people as well, but when the relationship becomes a sexual one, society has a considerable interest in that," Cooper told the judges.

"It's vital interests are actually threatened by the possibility of an unintentional and unwanted pregnancy."

Judge Stephen Reinhardt replied: "That sounds like a good argument for prohibiting divorce. But how does it relate to having two males and two females marry each other and raise children as they can in California and form a family unit where children have a happy, healthy home?"

The telecast attracted widespread attention after the court announced last month it had granted permission to televise live, federal proceedings on the case for the first time.

The trial over Proposition 8 had been slated for broadcast on YouTube and at other federal courthouses. But the ban's backers objected, and the U.S. Supreme Court blocked the plan.

Would have enforced ban

The issue of whether sponsors have legal standing in the case surfaced after outgoing California Gov. Arnold Schwarzenegger and Attorney General Jerry Brown, who is governor-elect,both refused to challenge the ruling that overturned the ban.

Schwarzenegger and Brown would have been responsible for enforcing the ban.

Since the state has taken no interest in defending Proposition 8, the defence has been left to the organizers of the ballot initiative in 2008. They put it on the ballot because they wanted a ban on same-sex marriage.

If the judges decide that the proponents of Proposition 8 don't have standing, then that is the end of the case: it goes no farther and same-sex marriage becomes legal again in California.

Opponents of Proposition 8 contend it violates the due process and equal protection rights of gays and lesbians under the U.S. Constitution by denying them the right to marry the person of their choice and by singling them out for disparate treatment without a legitimate rationale.

Lawyers on both sides have said if they lose in front of the 9th Circuit they will take the case to the Supreme Court.

Gay activists, in particular, have been putting a lot of pressure on the courts to televise the hearing because they believe they need a win in the court of public opinion as much as they need a win in courts.

What they believe is that seeing the issue of same-sex marriage argued in front of a judge under the rules of a court is going to be tremendously beneficial to their side.

They believe the arguments will persuade people that equal marriage is their right and that it's not a threat to traditional marriage, parenting or society.