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PULPIT: Appellate court asks, Who is hurt by gay marriage?

By: MARK BARNA
September 15, 2010
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Who is hurt by gay marriage?

The question is at the heart of a complex legal debate over “standing” in the Ninth Circuit Court of Appeals. The debate came about after the Aug. 4 ruling by a California federal judge that the passing of Proposition 8, the state’s referendum against same-sex marriage, is unconstitutional.

The issue of “standing,” or who has the right to sue, could make or break the Prop 8 case.
Bruce Hauscknecht, judicial analyst of CitizenLink, the lobbying arm of Focus on the Family, said in August that if Judge Vaughn Walker’s ruling stands, “it will most likely force all 50 states to recognize same-sex marriage.”

Currently same-sex couples can marry in five states and Washington, D.C.

Gay marriage in California became a hot-button issue in 2008 when two gay couples brought a lawsuit against Prop 8’s passing. Defending Prop 8 was the State of California. But California Gov. Arnold Schwarzenegger says the state will not appeal Walker’s ruling.

So who or what entity can legally appeal it?

Those in the running are ProtectMarriage.com, which defended the Prop 8 case, known as Perry v. Schwarzenegger, and California’s Imperial County.

Both may be rejected. “To sue in federal court, you must have suffered some personal injury,” said University of Missouri law professor Earl R. Larson. “When the government is defending its own laws, it automatically has standing. But it’s not clear if private parties can stand in the shoes of the government.”

The Circuit Court has threatened to dismiss the appeal if standing arguments, which were presented Friday in opening briefs, are not persuasive. That could mean gay marriage in California is made legal by default.

Larson isn’t sure if ProtectMarriage.com can achieve standing. “They can’t argue that they’ve been harmed by gay marriage because it hasn’t (become legal) yet,” he said. “They’d have to argue that families (who support the coalition) have been harmed.”

But that argument has been a bad one. During the Perry v. Schwarzenegger trial, no persuasive evidence emerged that heterosexual families would be hurt by gay marriage.

Andy Pugno, general counsel for ProtectMarriage.com, says all the coalition has to show is that striking down Prop 8 infringes on Californians’ constitutional right to enact ballot measures. “It is not true that we have to show that the sponsors of Prop 8 will be harmed by gay marriage,” Pugno told me.

Pugno dismisses the notion that Imperial County, where 70 percent of residents voted for Prop 8, will get standing.

“It makes no sense that (Imperial County) would have standing but another California county wouldn’t,” Pugno said. “That would be a glaring double standard.”

For more on the Prop 8 appellant case, go to my blog, The Pulpit, at www.thepulpit.freedomblogging.com.

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