- Associated Press - Monday, December 6, 2010

SAN FRANCISCO (AP) — 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.

The proceedings before a three-judge panel of the 9th U.S. Circuit Court of Appeals began with arguments about whether sponsors of voter-approved Proposition 8 had legal standing to challenge a lower court’s ruling that the ban was unconstitutional.

Later, lawyers were expected to argue about the constitutionality of the measure.

The court announced Nov. 17 that it had granted C-SPAN permission to televise live the federal proceedings on the case for the first time.

The January trial of the case was 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.

It’s not unusual for the 9th Circuit Court to allow the televising of such hearings. It recently allowed a hearing on Arizona’s controversial immigration law to be aired.

The issue of whether sponsors have legal standing in the case surfaced after outgoing California Gov. Arnold Schwarzenegger and Attorney General Jerry Brown both refused to challenge the ruling that overturned the ban. Mr. Schwarzenegger and Mr. Brown would have been responsible for enforcing the ban.

Attorney Charles Cooper, who represents the sponsors of Proposition 8, said they should be allowed to appeal because of the moves by Mr. Brown and Mr. Schwarzenegger. However, his claim met skepticism by Judge N. Randy Smith.

“There is no question the attorney general has a duty to defend all the causes the state or any state official is a party in,” Judge Smith said. “Did you ever seek an injunction or an order or anything suggesting the attorney general should appeal and appeal?”

The panel of judges also grilled a lawyer representing Imperial County, which has sought to defend Proposition 8 if the appeals court determines the measure’s backers do not have standing.

Judge Michael Hawkins repeatedly asked attorney Robert Tyler why his primary client was a deputy county clerk, not the elected clerk herself.

“It is a question that concerns some of us here on the panel,” Judge Hawkins said. “We wonder why there is not a single sentence in (the deputy’s) affadavit saying she is acting on behalf of the clerk.”

The judges also questioned whether the lower court’s ruling that overturned Proposition 8 would apply statewide or only to the two counties where the pair of same-sex couples who sued to overturn the measure unsuccessfully sought marriage licenses.

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.

Proposition 8’s sponsors also maintain that U.S. District Judge Vaughn Walker ignored U.S. Supreme Court precedents holding that the U.S. Constitution does not guarantee gays the right to wed.

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

Law schools across the country held public viewings of the appeals hearing, from the University of Kansas to the University of California’s Hastings College of the Law, just down the street from the federal courthouse.

Residents of San Francisco’s Castro District, the hub of the city’s gay community, were gathering at a neighborhood community center to watch the proceedings.

In 1996, the nation’s appeals courts were allowed to decide for themselves whether to allow cameras at argument sessions. So far, appeals courts in New York and San Francisco have permitted such coverage.

The Supreme Court does not permit cameras, and several justices have expressed their strong opposition to the idea.

Since the Bush v. Gore case on the 2000 presidential election, the Supreme Court has released audio recordings shortly after arguments in some high-profile cases.

Associated Press writer Paul Elias contributed to this report.


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