DN Editorial: Riveting arguments on gay marriage

THE MOST RIVETING "reality TV" this week was on C-Span: a two-hour-plus federal appeals court hearing on California's Proposition 8 amendment banning gay marriage.

Below is our review, but first the backstory: The California Supreme Court overturned a ban on same-sex marriage in May 2008. Later that year, Proposition 8 (financed with big bucks from out of state, including millions from the Mormon Church) got 52 percent of the vote. Gay marriage was outlawed, but 18,000 already-married couples kept their status. Two lawyers - the "odd couple" of (liberal) David Boise and (conservative) Ted Olson, who argued opposite each other in Bush v. Gore - bought a legal challenge and a federal judge ruled in August that denying gays the right to marry violates the Fifth and 14th Amendments' guarantees of due process and equal protection.

Monday's telecast was a rare chance to see each side make its best case, unfiltered, and the case against gay marriage is remarkably lame.

Faced with the need to show a "rational basis" for reserving marriage to heterosexuals, Charles Cooper, the attorney for Proposition 8 supporters, essentially said it was because society has an interest in encouraging procreation. So why does the law allow middle-aged and older people, who no longer can reproduce, to marry? His argument for keeping marriage heterosexual was just as weak: "[Society's vital] interests are actually threatened by the possibility that unintentional and unwanted pregnancy will mean that the child is born out of wedlock and raised by, in all likelihood, its mother alone," he said. As one of the three appeals court judges suggested, Cooper's argument sounded more like a case against permitting divorce.

Perhaps the most telling aspect in the drama was an hour's argument over who has legal standing to defend Proposition 8. After the amendment was overturned in August, California's governor, Arnold Schwarzenegger - and its current attorney general, now governor-elect Jerry Brown - each said he would not defend it in court. So the appeals court judges will have to decide if the proponents of Proposition 8, as well as a marriage-

license clerk in one of California's counties, should be allowed to do it.

To have standing in a court case, you have to show that you will be hurt if the law is overturned, and that's something that people who oppose gay marriage just can't show. If gays are again allowed to marry in California, how would anyone else be harmed?

The case for "abiding by the wishes of the people" also fell flat. One judge posed the obvious question: Could Californians have passed an amendment to re-institute segregation? (Cooper's answer: no.) We don't put the Bill of Rights up for a vote (and it's a good thing, too: what are the odds it would survive? )

Legal experts say that the California judges appear to be looking for a way to strike down Proposition 8, but only for the narrowest of reasons - and only for California. Most experts also agree that, at least for now, the U.S. Supreme Court is in no mood to declare that gays have a constitutional right to marry.

But the "must-see TV" broadcast provided compelling evidence that times are changing, and fast, and not only in California. Here's the reality that isn't televised: Tens of thousands of married gay couples in five states and D.C. are living their lives, and raising their children, and it's not hurting anyone.

If there's a "rational basis" to deprive gays of the right to marriage, no one has yet found it. *