gay_cityhall_gavel.jpgThe sponsors of California’s Proposition 8 have urged a federal appeals court in San Francisco to uphold the ban on same-sex marriage, arguing that a trial judge who struck down the measure last month “invented” a right that doesn’t exist.

“There is no fundamental right to marry a person of the same sex,” the Proposition 8 sponsors wrote in a brief submitted Friday evening to the 9th U.S. Circuit Court of Appeals.

The filing was the opening brief in an appeal by the sponsors and their committee, Protect Marriage, of an Aug. 4 decision in which U.S. District Judge Vaughn Walker said the measure violated the U.S. Constitution’s guarantees of equal protection and due process.

Walker ruled in a civil rights lawsuit filed by a lesbian couple from Berkeley and a gay couple from Burbank. The couples are due to file their response by Oct. 18.

A panel of the appeals court will hear arguments on the case the week of Dec. 6, and in the meantime, the higher court has stayed Walker’s ruling.

Proposition 8, enacted by a 52 percent majority of California voters in 2008, provided that “only marriage between a man and a woman is valid or recognized in California.”

The measure’s supporters said in their brief that while the U.S. Supreme Court has recognized a fundamental right to marry, that right doesn’t extend to gay people because marriage is by definition the union of a man and a woman.

“Even a cursory review of Supreme Court precedent makes clear that the fundamental right to marry recognized by the court is the right to enter a legally recognized union only with a person of the opposite sex,” the sponsors wrote.

The sponsors also contended Walker reached a “startling conclusion” and ignored history and tradition when he found that there is no good reason for excluding gay and lesbian couples from marriage.

The reason for restricting marriage to opposite-sex couples, the sponsors wrote, is “society’s interest in increasing the likelihood that children will be born to and raised by the couples who brought them into the world in stable and enduring family units.”

The sponsors contend the legal standard for determining the constitutionality of Proposition 8 is merely whether there was a rational basis for the measure. They claim that basis is supplied by voters’ wish to encourage responsible procreation by heterosexual couples.

American Foundation for Equal Rights president Chad Griffin, whose organization sponsored the lawsuit, said in a statement that despite the appeal, “the fact remains that Proposition 8 is unconstitutional, as was proven conclusively and unequivocally through a full federal trial.”

“There is no getting around the fact that the (trial) court’s decision was based on our nation’s most fundamental principles, and that the Constitution does not permit unequal treatment under the law,” Griffin said.

Walker held a 13-day non-jury trial on the lawsuit in San Francisco in January before issuing his 136-page ruling in August. The proceeding was the nation’s first federal trial on a state ban on same-sex marriage.

A previous five-year battle over same-sex marriage in California centered on state rather than federal constitutional claims. That dispute came to an end when the California Supreme Court last year upheld the voters’ right to enact Proposition 8 as a state constitutional amendment.

The voter initiative overturned an earlier state high court ruling that had found a state constitutional right to gay marriage.

The three federal appeals court judges will hear the Proposition 8 case, and the exact date of the December hearing will not be announced until six weeks beforehand.

That panel’s eventual ruling can be appealed to an expanded 11-judge panel of the circuit court and then to the U.S. Supreme Court.

Julia Cheever, Bay City News

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