Commentary: Gay marriage's best-case scenario involves Supreme Court

The Sacramento BeeDecember 8, 2010 

Monday's federal appellate court hearing on the constitutionality of Proposition 8, the California ballot measure that bars same-sex marriages, was divided into two one-hour segments.

During the first hour, lawyers argued over who, if anyone, has legal "standing" to appeal District Judge Vaughn Walker's ruling that Proposition 8 is unconstitutional.

Gov. Arnold Schwarzenegger and Attorney General Jerry Brown, who will be governor in a month, refused to defend the measure. Attorneys for its proponents want the court to allow them to become the appellants.

There's also a very odd bid by Imperial County, or at least its marriage license clerk, to intervene as an appellant, although Imperial's attorney was ill-prepared to defend its case.

The second half of the hearing before three appellate judges was devoted to the measure itself – whether it represents the right of states and their voters to set legal parameters of marriage or is an unconstitutional abridgement of everyone's right to marry whomever he or she chooses, as Walker ruled.

What's happening in California is, of course, part of a larger national debate over marriage. Same-sex marriages are legal in some states and illegal in others, while in California it's very much up in the legal air, thanks to Walker's decision.

Polls indicate that it's a close question among voters everywhere, and the panel itself may be divided, if Monday's questioning of attorneys is any guide.

It's an issue that sorely needs some national declaration of policy, either via Congress or the courts, lest the status of same-sex couples be hopelessly entangled. Were such a couple to move from a state that allows same-sex marriages to one that doesn't, for example, would the marriage be legally recognized?

And without a national standard, the federal tax treatment of such couples is terribly confused. Current federal law defines marriage as a union of a man and a woman.

The three-member appellate panel, the full 9th District Court of Appeal and the U.S. Supreme Court could duck the thorny gay marriage issue by simply declaring that without Brown's or Schwarzenegger's participation, no one has legal standing to pursue an appeal of Walker's ruling.

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