The ongoing legal battle over Proposition 8, an amendment to the Californian constitution affirming the traditional definition of marriage, has run into yet more controversy after it emerged that one of the judges is married to a prominent anti-Prop 8 activist.
Prop 8, which was passed by popular vote in 2008, and struck down by a federal court earlier this year, came before the US Ninth Circut Court of Appeal this week.
Justice Stephen Reinhardt, noted as one of the most liberal judges in the US, is married to Ramona Ripston, director of ACLU of Southern California which was a major opponent of Prop 8.
Supporters of Prop 8 want Reinhardt to take himself off the case because of his wife's job. However, Reinhardt has refused to step aside.
Some legal scholars are questioning Reinhardt's ruling, because the ACLU did ask a federal judge to rule the ballot proposal unconstitutional last year.
Deborah Rhode, a law professor at Stanford University, told the San Francisco Chronicle that she found Reinhardt's ruling questionable. "When you have a judge's spouse who has directly participated in a proceeding connected to the case....there's a reason why the public could legitimately have concerns," she said. "You don't want to muzzle the spouses of judges, but you also don't want to compromise public confidence in the legitimacy of a decision."
Despite the controversy, the Chronicle added, Prop. 8 backers have already accepted Reinhardt's ruling. Justice Reinhardt's rulings have a history of being overturned by the Supreme Court, and he is one of the most overturned judges in history.
Both Gov. Arnold Schwarzenegger and Attorney General Jerry Brown, the governor-elect, have refused to defend the state law on appeal, a stance which troubles both the court's most conservative member, Judge N. Randy Smith, and Judge Reinhardt.
Californian voters approved Proposition 8 in November 2008 by a 52 to 48 percent margin.
Charles Cooper, representing Protectmarriage.com, said the court had to address whether the definition of marriage was an issue that "the people themselves can resolve through the democratic process…or whether our constitution takes that out of their hands."
Senior Circuit Judge Michael Hawkins challenged that assertion, asking whether the people of California could reinstitute school segregation. "How is this different?" asked Judge Hawkins, an appointee of President Bill Clinton whose vote is expected to be critical in the case.
Mr. Cooper argued that Californians had a "rational basis," a critical test for the courts, to enact Prop 8. That basis, he said, was to protect a traditional definition of marriage designed to channel "sexual relations between a man and woman" to raise children in stable families.
"That sounds like a good argument for prohibiting divorce," said Judge Reinhardt, an appointee of President Jimmy Carter.
Mr. Cooper argued that the term "marriage" essentially is the institution. "If you redefine the word, you change the institution," he said.
Ted Olson, a lawyer for the same-sex couples who want to marry, told the court that California had "engraved discrimination on the basis of sex and sexual orientation into its constitution."
He said there was no good reason to prohibit same-sex marriage.
Judge N. Randy Smith, who was appointed by President George W. Bush, said that he could "suggest a couple of things," such as whether reserving the term "marriage" for opposite-sex couples was important to "market" marriage to couples.
For over an hour, the court considered whether the original proponents of Prop 8 and Imperial County even have legal standing to challenge the lower-court ruling.
Mr. Cooper argued that Prop 8 proponents, as represented by Protectmarriage.com, were able to stand in to defend the law in a 2009 challenge heard before the state's supreme court, and thus could do so in this case.
Judge Reinhardt suggested several times that the court could return the issue to the California state supreme court for a ruling on whether Prop 8 proponents could defend a proposition they had worked to turn into law.