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San Francisco Appeals Court Considers Same-Sex Marriage Ban

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9th U.S. Circuit Court Judge Michael Hawkins speaks during a hearing Monday on the constitutionality of California's Proposition 8. (CBS)

9th U.S. Circuit Court Judge Michael Hawkins speaks during a hearing Monday on the constitutionality of California’s Proposition 8. (CBS)

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SAN FRANCISCO (AP) — The legal fight over California’s same-sex marriage ban reached the next legal level Monday when it went before a federal appeals court during a nationally televised hearing in San Francisco.

The hearing before a three-judge panel of the 9th U.S. Circuit Court of Appeals began with arguments about whether sponsors of voter-approved Proposition 8 had legal standing to challenge a lower court ruling that the ban was unconstitutional.

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During Monday’s hearing, judges suggested they were considering sending the contentious case on a detour to the California Supreme Court.

The suggestion came from Judge Stephen Reinhardt during the first half of a two-hour hearing before a three-judge panel of the 9th U.S. Circuit Court of Appeals on the state’s voter-approved ban on same sex-marriage.

That portion of the hearing concerned whether the sponsors of Proposition 8 even have standing, or the legal right, to appeal a ruling by U.S. District Judge Vaughn Walker that found the measure unconstitutional.

The appeals panel had called for arguments as to whether the measure’s sponsors could appeal since the official defendants in the case—including Gov. Arnold Schwarzenegger and Attorney General Jerry Brown—had declined to appeal Walker’s ruling.

David Boies, a lawyer for two same-sex couples, told the court he believes it’s “crystal clear” the sponsors had no right to appeal because they were not personally hurt by the lower court ruling.

Reinhardt then asked, “Why shouldn’t we ask the California Supreme Court what the law is in California?

“I don’t see what we would have to lose by asking California to certify the question and they would tell us,” Reinhardt said.

Under an agreement between the federal appeals court and the state high court, the federal court can delay ruling on a case while it asks the California court to decide an issue of state law.

After the state court decides the issue—which in this case would be whether Proposition 8 sponsors have the right to appeal—the case would go back to the 9th Circuit for a further ruling.

Charles Cooper, a lawyer for the measure’s sponsors, said he doesn’t object to the court sending the standing question to the state Supreme Court.

“If you don’t agree with me that we have standing, then I do urge you do ask the California Supreme Court to decide this issue before you dismiss this case and allow a single district court decision to nullify the will of over 7 million Californians,” Cooper told the judges.

The court announced on Nov. 17 that it had granted C-SPAN permission to televise the live proceedings on the case for the first time.

The January trial of the case had been slated for broadcast on YouTube and at other federal courthouses. But the ban’s backers objected and the U.S. Supreme Court blocked the plan.

It’s not unusual for the 9th U.S. Circuit Court of Appeals to allow the televising of such hearings. It recently allowed a hearing on Arizona’s controversial immigration law to be aired.

Opponents of Proposition 8 contend it violates the due process and equal protection rights of gays and lesbians under the U.S. Constitution by denying them the right to marry the person of their choice and by singling them out for disparate treatment without a legitimate rationale.

Proposition 8’s sponsors maintain U.S. District Judge Vaughn Walker ignored U.S. Supreme Court precedents holding that the Constitution does not guarantee gays the right to wed.

Lawyers on both sides have said if they lose in front of the 9th Circuit they will take the case to the Supreme Court.

(© 2010 CBS Broadcasting Inc. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed. The Associated Press contributed to this report.)

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