SAN FRANCISCO (Reuters) - U.S. appeals court judges considering whether to allow gay marriage in California on Monday asked whether there was any good reason for stopping same-sex weddings.
California voters, with a reputation for social liberalism, shocked the United States in 2008 when they narrowly approved the Proposition 8 ban on gay marriage only months after the top state court opened the door to same-sex weddings.
A federal judge sided with the same-sex couples and struck down the ban, but the ruling is on hold while it is on appeal.
More than 40 U.S. states have outlawed such unions, but the California challenge could have a national impact if the Supreme Court decides to review the appeals court decision.
Much of the rapid-fire question and answer on Monday focused on whether the ban was rational, or whether it unreasonably trampled the rights of same-sex couples.
Judges hammered the lawyer supporting Proposition 8 on why a Supreme Court precedent which struck down a broad Colorado referendum denying rights to gays and lesbians would not also require striking down the California gay marriage ban.
“If you take away a bunch of rights that’s bad, but if you take away just one right, that’s ok?,” Judge Michael Hawkins asked lawyer Charles Cooper.
But when the lawyer in favor of same-sex marriage, Ted Olson, said he could not imagine a good reason to fence off marriage from gays and lesbians, Judge N. Randy Smith interjected, “Maybe I can suggest a couple of things.”
Society could try to channel procreation by trying to “market” marriage for heterosexuals only, he said at a different point.
Before judges decide on constitutional questions surrounding the ban, they must first decide whether the backers of Proposition 8 have a right to defend it.
California Attorney General — and governor-elect — Jerry Brown and Gov. Arnold Schwarzenegger have declined to do defend Proposition 8.
Judges seemed wary of letting the Proposition’s backers appeal, but they also expressed frustration with the idea that a governor could effectively veto an approved ballot measure by simply declining to defend it.
“We have an attorney general and a governor with no ability to nullify the acts of the people, and then by just not appealing, they do it,” said Smith.
Proponents of the ban say the lower court ignored common wisdom and history that limits marriage to a man and a woman in order to spur procreation, and that voters rebelled against court-mandated same-sex marriage.
“The California electorate disagreed, respectfully, with the California Supreme Court, and they reversed it,” Cooper said in court.
Gay marriage proponents successfully argued in the lower court that the definition of marriage has changed over time, as some laws once banned interracial unions. Same-sex marriages would not harm the institution, they contended.
Same-sex marriage “is not going to discourage heterosexual people from getting married. It is not going to keep them from getting divorced.” Olson said in court.
The three-man panel, including two judges appointed by Democratic presidents and one appointed by a Republican, is likely to take weeks or months to reach a decision, which then could be appealed to the full 9th Circuit, or to the Supreme Court.
Reporting by Peter Henderson and Dan Levine, Editing by Sandra Maler