Mercury News reporter Howard Mintz notes that Judge Stephen Reinhardt continually wondered aloud if the court should decide that gays have a broad constitutional right to marry or simply that Prop. 8 unfairly stripped away an existing right of gays in California to marry.
It could be a signal of where the U.S. Ninth Circuit judges may be heading in their decision to either uphold or overturn Walker's ruling, and how far-reaching or not they may go.
Mintz and other court observers note that the judges appeared not too impressed by the main argument put forth by pro-Prop. 8 lawyers that a gay marriage ban is needed to encourage procreation in society and to protect children.
Courage Campaign's Prop. 8 Trial Tracker has extensive coverage of today's hearing.
In addition to examining the merit's of Walker's ruling, the U.S. Ninth Circuit also tackled the issue of whether or not pro-Prop. 8 lawyers have the legal standing to appeal Walker's decision. The U.S. Ninth Circuit may ask the California State Supreme Court to weigh in on that matter, according to the San Francisco Appeal.
Current and future California governors and attorney generals, who do have legal standing in the case, have refused to defend Prop. 8 in court. Anti-gay marriage forces have tried to step in and argue for the continued ban on same-sex marriage, but they may not have legal standing during the appeals process.
Ted Olson, one of the key lawyers seeking to overturn Proposition 8 and Califorina's gay marriage ban, told judges that same-sex marriage can do no harm to heterosexual marriage and that gays and lesbians are clearly being discriminated against by Prop. 8.
"There is no doubt it is discrimination and that it does great harm and I submit that it can't be justified at any level," Olson told the U.S. Ninth Circuit.
The court's decision won't come until sometime next year.
Contact Patrick Range McDonald at email@example.com.