SAN FRANCISCO - The legal fight over California's ban on same-sex marriage went before a federal appeals court Monday in a hearing that reached a nationwide TV audience anxious for a final decision on whether the ban violates the U.S. Constitution.
The hearing before a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit also focused on whether supporters of voter-approved Proposition 8 have the legal standing to challenge a lower court's ruling that the ban is unconstitutional.
The judges did not issue an immediate ruling and set no timetable.
C-SPAN's broadcast of the nearly three-hour hearing gave the public outside the courtroom its first - and possibly last - direct look at the debate raging in the case.
Earlier this year, the U.S. Supreme Court blocked U.S. District Judge Vaughn Walker in San Francisco from broadcasting the full trial. The Supreme Court has a blanket ban on televising its own proceedings, meaning future hearings will be blacked out if the case reaches that court, as many legal experts and lawyers on both sides think it might.
Viewers watched attorney Charles Cooper, who represents sponsors of the 2008 ban, argue that 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.
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 issue of legal standing surfaced after departing Gov. Arnold Schwarzenegger and Attorney General Jerry Brown refused to challenge the ruling that overturned the ban.
Cooper contended that the coalition of religious and conservative groups that sponsored Proposition 8 should be allowed to appeal because of the politicians' moves.
The judges appeared dubious about whether the ban's supporters were qualified to appeal but also seemed worried about allowing the governor and attorney general to effectively kill Proposition 8 by refusing to defend it.
"If the state does not defend it, it's just tossing in the towel," Reinhardt said. "The governor is not allowed to veto this measure, but he can in effect veto it."
Opponents of Proposition 8 say it violates the due-process and equal-protection rights of gays and lesbians by denying them the right to marry the person of their choice and by singling them out for disparate treatment without a legitimate rationale.
Supporters of the ban succeeded in keeping the full trial earlier this year from being televised, saying they feared that broadcasts could prompt violent extremists who support same-sex marriage to attack lawyers and witnesses who would be identified on TV.
The U.S. Supreme Court barred the broadcasts and said Walker tried to change his court's rules barring broadcasts "at the eleventh hour to treat this case differently than other trials."
The state Supreme Court upheld Proposition 8 last year, leading to the federal lawsuit now under consideration.
Defense Secretary Robert M. Gates predicted the "don't ask, don't tell" policy on gays in the military would be around for a while longer.
He addressed the matter in remarks to sailors Monday aboard the aircraft carrier Abraham Lincoln in the Arabian Sea. Gates said he was "not particularly optimistic" that Congress would overturn the policy soon, even though he wishes it would.
Senate Democrats want
to vote this month to overturn the 1993 law, which bans gays from serving openly. Republicans have blocked the proposal, insisting that Congress deal instead with tax cuts and spending.
Gates voiced concern that Congress would drag its feet too long and that federal courts would intervene.