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Analysis: Prop 8 Ruled Unconstitutional

Mattheus Stephens, a civil trial lawyer who has more than a dozen years experience in LGBT law, and Charles LiMandri, general counsel for National Organization for Marriage, speak with Joanne Faryon about Proposition 8.

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A federal appeals court has declared California's same-sex marriage ban to be unconstitutional, paving the way for a likely U.S. Supreme Court showdown on the voter-approved law.

A three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco ruled 2-1 Tuesday that a lower court judge interpreted the U.S. Constitution correctly in 2010 when he declared the ban, known as Proposition 8, to be a violation of the civil rights of gays and lesbians.

Paul Katami and Jeff Zarrillo, two of the four plaintiffs in the Proposition 8 trial, spoke to KPBS-FM's Midday Edition about the ruling.

"At the end of the day, we not only feel like we’re on the right side of the law, we feel like we’re on the right side of history," Zarrillo said.

Mattheus Stephens, a civil trial lawyer who has more than a dozen years experience in LGBT law, and Charles LiMandri, general counsel for National Organization for Marriage, were also on the show and spoke with KPBS Television's Evening Edition.

Stephens said the 9th Circuit found there is no legal purpose for the law enacted by Proposition 8.

"The only thing that it does is rob a specific group of people of their human dignity," he said. "The language of marriage must be equally applied to all Californians."

But LiMandri said marriage has a purpose—producing children—and allowing gay marriage interferes with that purpose.

"Obviously there’s a rational basis for marriage, because it’s intended to bring the two halves of humanity, men and women, together to produce the next generation," he said. "Heterosexual couples can do that, whereas our brothers and sisters in the gay community, although entitled to all the respect and dignity that we can give them, there are differences. Two people of the same sex cannot have a conjugal union that produces a human being."

Stephens responded that the court addressed this argument and found that nothing about Proposition 8 "lends itself to achieving that objective."

"Proposition 8 does nothing to enhance procreation among anybody," he said.

LiMandri said he was disappointed, but not surprised, by the court's decision.

"Everybody knows the 9th Circuit is the most liberal and most reversed court probably in the history of the United States," LiMandri said.

LiMandri said he expects an appeal to the U.S. Supreme Court will bring a reversal, and marriage will be left up to the states.

The California Supreme Court ruled in November that the state's vigorous citizens' initiative process grants official proponents of ballot measures the right to defend their measures in court if state officials refuse to do so.

Former Chief U.S. District Judge Vaughn Walker disclosed he was gay and had a partner of 10 years after he retired from the bench last year. Proposition 8 backers have argued that Walker's relationship posed a potential conflict of interest and that he should have revealed it before he declared the measure unconstitutional in August 2010.

It was the first instance of an American jurist's sexual orientation being cited as grounds for overturning a court decision. Walker's successor as the chief federal judge in Northern California, James Ware, rejected claims that Walker was unqualified to preside over the 13-day trial. The 9th Circuit held a hearing on that question in December.

California voters passed Proposition 8 with 52 percent of the vote in November 2008, five months after the state Supreme Court legalized same-sex marriage by striking down a pair of laws that had limited marriage to a man and a woman.

The ballot measure inserted the one man-one woman provision into the state Constitution, thereby overruling the court's decision. It was the first such ban to take away marriage rights from same-sex couples after they had already secured them.

The Williams Institute on Sexual Orientation and the Law, a think tank based at the University of California, Los Angeles, has estimated that 18,000 couples tied the knot during the four-month window before Proposition 8 took effect. The California Supreme Court upheld those marriages but ruled that voters had properly enacted the law.

The Associated Press contributed to this report.


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