by Tenzin Shakya and Audrey Arthur
Proponents of Proposition 8 presented their case to the Ninth Circuit Court of Appeals Monday, citing procreation and children’s well being as a rational basis to appeal an Aug. 4 ruling deciding that the proposition is unconstitutional.
A three-judge panel, consisting of Judge Stephen R. Reinhardt, Judge Randy Smith and Judge Michael Hawkins, reviewed the case brought forth by protectmarriage.com.
“We believe there is clearly a rational basis justifying the traditional definition of marriage,” said Charles Cooper defense attorney to the appellants. “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.”
Proposition 8 was passed by California voters in 2008 defining marriage as an institution between one man and one woman. However, in an August ruling, Chief U.S. District Judge Vaughn Walker said the proposition is unconstitutional and infringes upon equal protection rights of gay and lesbian couples. Proposition 8 proponents then issued an appeal to the Ninth Circuit Court of Appeals.
Although the court has no time limit, most cases heard by the Ninth Circuit are decided between 3-12 months. If the judges decide the proponents have legal standing, their case may continue to the California Supreme Court. Else, the federal appeals court may issue a decision without referring to the Supreme Court.
Cooper argued that the historical definition of marriage has existed now and “for all time immemorial.” Society has no interests in relationships such as platonic male-female relationships or same-sex relationships because of their inability to produce children, Cooper said.
“When a relationship between a man and a woman becomes a sexual one, society immediately has a vital interest in that,” Cooper said. “Society needs the creation of new life for the next generation.”
The interests of society are threatened by unwanted pregnancies and pregnancies out of wedlock, Cooper said, because such instances often leave the mother to raise the child alone. Cooper suggested that the traditional home of one father one mother is the most beneficial environment to raise a child.
“Society will have to step in and assist that single parent in all likelihood, that is what usually happens, in the raising of that child,” Cooper said. “But as well as the undeniable fact that children raised in that circumstance have poor outcomes.”
Judge Reinhart of Los Angeles responded, “That sounds like a good argument for prohibiting divorce.” The statement initiated a wave of laughter throughout the courtroom.
He also questioned how such an argument would invalidate a same-sex couple from raising children in California and creating a happy, healthy family unit.
Cooper stated he was attempting to give examples of procreation to exhibit the clear distinctions among same-sex couples and opposite sex couples.
Chief Deputy City Attorney Therese Stewart responded to Cooper’s statements.
“It doesn’t matter how the child comes into the world,” said Stewart. “Family law in California recognizes that same-sex couples do procreate.”
To portray opposite-sex couples as traditional or ideal is demeaning toward same-sex couples, Stewart said, in that it implies gay or lesbian couples are less desirable.
“California does not discourage that in any way or say one is more desirable than the other,” Stewart said.
Theodore Olsen, an attorney who has led the challenge against Proposition 8, reacted to comments made in the appellant’s brief referring to problems that may occur with children if Proposition 8 is overturned.
“Proposition 8 needs to be enacted because the existence of same-sex marriage will make children prematurely occupied with issues of sexuality,” the brief read.
“That is nonsense,” Olsen responded. “If that was the course of justification, it would equally warrant the banning of comic books, television, video games and conversations with other children.”
Olsen criticized campaign methods of Yes on 8 and their emphasis on protecting children from potential harm of same-sex marriages.
“That was the original rationalization–protect our children from thinking that gay marriage is okay,” Olsen said. “Well, what is the matter with that? It must be something with the gay people.”
Olsen said such campaign strategies promote the idea that children must be protected from “these people.”
Judge Norman Randy Smith of Pocatello questioned the validity of any argument due to the equal rights that all couples share.
“What is the rational basis then if homosexuals have all the rights that heterosexual couples have?” asked Smith. “We’re left with a word: marriage.”