Ann Gaffney Shores knows that only fools try to predict judicial rulings. But the Corte Madera lawyer left this week's federal appeals court hearing on the constitutionality of a voter-approved same-sex marriage ban optimistic that marriage equality moved a legal step closer to becoming a permanent reality in California.
"The judges are probably inclined to give us a victory to some extent," said Shores, who arrived with her brother and his husband for the 9th U.S. Circuit Court of Appeals hearing nearly three hours before its start on Dec. 6 so they could get seats in the courtroom with marble mosaics, columns and stained-glass windows. "I have no doubt we will see marriage equality in my lifetime."
For nearly two-and-a-half hours on Monday in a televised proceeding, three black-robed judges probed lawyers on both sides about case law relating to whether voters could exclude gay men and lesbians from marrying. Two of the judges posed questions that might have signaled their openness to affirming an August ruling overturning Proposition 8. Voters approved the same-sex marriage ban just weeks after the California Supreme Court decreed that homosexuals could wed in the state. More than 18,000 same-gender couples, including Shores' brother, tied the knot while it was legal in California, between June and November 2008.
When Charles Cooper, the lawyer defending the ban, tried to explain to the appellate panel his belief that gay marriage threatens societal interests because children raised by single parents have "poorer outcomes," presiding Judge Stephen R. Reinhardt of Los Angeles cut in. "That sounds like a good argument for prohibiting divorce," the judge known as the court's liberal lion said, eliciting laughter. "But how does it relate to having two males or two females marry each other and raise children and form a family unit where children have a happy, healthy home?"
Judge Michael Daly Hawkins, an Arizona-based Clinton appointee, asked Cooper a series of pointed questions, which at least hinted at a belief that laws evolve with the times, and that the time for gay men and lesbians to be able to marry may have arrived.
"Could the people of California reinstitute school segregation by a public vote?" Hawkins asked.
"No, your honor," Cooper replied. "That would be inconsistent with the United States Constitution."
"But they probably could have done that in 1870 or '80 or '90, right?" Hawkins continued.
"Ah, very possibly, your honor, yes."
"How's this different?" Hawkins asked.
"This is nothing like, for example, the racial restrictions at issue in [the Supreme Court case Loving, where there is simply no legitimate rational basis whatsoever to deny the right of a mixed-race couple to marry."
According to Cooper, the rational basis for excluding same-gender couples from marriage is that they cannot naturally have children—the purpose, he says, of marriage.
A gay couple who live in Burbank and would like to wed before having children and a lesbian couple who live in Berkeley with their children filed the federal case against Proposition 8 because they want to marry. Their lawyers, Theodore Olson and David Boies, a powerhouse legal team who opposed one another in the 2000 Bush v. Gore battle for the presidency, contend Proposition 8 has no more rational basis than the anti-miscegenation law the U.S. Supreme Court struck down in 1967 in Loving v. Virginia. They also contend that voters had no more right to amend the California Constitution to confine marriage to opposite-sex couples than they would to try to amend it to reinstitute school segregation.
If the state took Cooper's procreation argument to the extreme, Olson said, "California could say, 'We're overpopulated, and we'll deny people the right to marry.' "
Proposition 8, Olson argued, violates the equal-protection and the due-process clauses of the 14th Amendment.
"What this case comes down to is that California has built a fence around its gay and lesbian citizens, and it's built a fence around marriage," Olson told the randomly selected three-judge panel. "It won't let them out of that fence into the marriage fence. That is a violation of the equal-protection and due-process clauses."
Ann Gaffney Shores knows all about Loving v. Virginia. She was 10 years old in 1967, when the U.S. Supreme Court outlawed race-based marriage restrictions. Shores' Chinese mother and white father had to consult a lawyer before buying a house in Missouri seven years earlier.
If the federal Proposition 8 case makes it to the U.S. Supreme Court, it could legalize gay marriage throughout the U.S. the way Loving v. Virginia legalized interracial marriage.
Both sides in the Proposition 8 case have said they would appeal to the nation's highest court if they fail to prevail in the lower court. But all three judges questioned whether Cooper and the Proposition 8 supporters had legal standing to appeal the matter in the first place. If the panel determines that Proposition 8 supporters lack standing to bring the case, it could uphold U.S. District Court Judge Vaughn Walker's August ruling overturning Proposition 8. Then, if the U.S. Supreme Court concurs that the initiative's supporters lack standing, same-sex marriage could again be legal in California.
Ordinarily, the governor and the attorney general defend voter initiatives in court. But both Arnold Schwarzenegger and Jerry Brown refused to defend the same-sex marriage ban. All three judges expressed concern that no government official came forward to defend Proposition 8. The last time a California attorney general refused to defend a voter initiative was when a 1964 ballot proposition amended the state constitution to allow housing discrimination.
Even the panel's most conservative judge, N. Randy Smith, a George W. Bush appointee who lives in Idaho and was born and educated in Utah, questioned Proposition 8's rational basis.
"What is the rational basis for an initiative when California law really says that homosexual couples have all the rights of marriage, all the rights of child-rearing, all the rights that others have?" Smith asked Cooper. "We're left with a word—marriage."
"You are left with a word that is essentially an institution," Cooper responded. "If you redefine the word, you change the institution. You cannot separate the two. The issue here is whether it will be redefined to be a genderless institution that bears little or no relationship to the historic purpose of marriage."
Therese Stewart, San Francisco's chief deputy city attorney, argued against Proposition 8 before the appellate court on behalf of San Francisco. "Same-sex couples do procreate," said Stewart, a lesbian who has a child and lives in Novato with her wife, Carole Scagnetti. "They don't do it the old-fashioned way."
"We are talking about a label, but it does have great meaning," she said. "Equal protection doesn't allow the state to enact a measure that some people are unworthy."
The judges gave no indication about when they would rule. They did discuss asking the California Supreme Court to weigh in first on the question of whether Proposition 8 supporters have legal standing to have appealed to the federal appellate court. If the California court says they do have standing, attorney Boies said he would return to the 9th Circuit to argue again that they do not.
If the attorney general and the governor refuse to appeal, and no one else is allowed to appeal, "haven't they effectively nullified the initiative?" Judge Reinhardt asked. "If the state does not defend it, that's just tossing in the towel."
Contact Ronnie Cohen at email@example.com.