By Dan Levine and Peter Henderson
SAN FRANCISCO (Reuters) - A three-judge appellate panel considering whether to allow gay marriage to resume in California Monday sharply questioned both sides of the case, which many expect to be appealed to the Supreme Court and set national policy.
The Ninth Circuit Court of Appeals judges have been asked to discard a lower court ruling that the state's 2008 Proposition 8 ban on same-sex marriage violates Constitutional guarantees of equality and due process.
But first the court must decide whether the backers of the Proposition 8 ban have the right to defend it after the California governor and attorney general declined to do so.
Judges questioned whether anyone other than the named state officials had such a legal right, but some on the panel also seemed frustrated with the idea that by declining to defend a popularly approved ballot measure the governor and attorney general in effect could veto it.
"That does not seem to be consistent with the initiative system," Circuit Judge Stephen Reinhardt said in court during the first half of the hearing.
California voters, with a reputation for social liberalism, shocked the United States in 2008 when they narrowly approved the Proposition 8 ban on gay marriage only months after the top state court opened the door to same-sex weddings.
More than 40 states have outlawed such unions, but the California challenge could shape the nation if the Supreme Court decides to review the appeals court decision.
A lower court struck down the ban earlier this year, ruling that marriage is a fundamental constitutional right and that the defenders of the ban showed no justifiable reason for limiting the institution to opposite-sex couples.
The ruling is on hold, though, while under appeal.
California Attorney General -- and governor-elect -- Jerry Brown declined to defend the ban, and U.S. District Court Chief Judge Vaughn Walker questioned whether proponents of the ban had the legal right to defend it in the 9th Circuit U.S. Court of Appeals.
The Prop 8 ban proponents say the lower court ignored common wisdom and history that limits marriage to a man and a woman in order to spur procreation.
They also argue that they have the right to defend the ban as official sponsors of the 2008 ballot measure, since the attorney general will not.
"People of good will can and do differ in good faith on the issue of same-sex marriage, and their differences should be resolved through the political process, not here," they argued in a brief.
Gay marriage proponents successfully argued in the lower court that the definition of marriage has changed over time, for instance including polygamy in some societies. Same-sex marriages would not harm the institution, they contended.
Limiting matrimony to opposite-sex couples is no different than laws which stopped interracial marriages, they said in a brief.
"The tragic time has long passed when our government could target our gay and lesbian citizens for discriminatory, disfavored treatment even imprisonment because those in power deemed gay relationships deviant, immoral, or distasteful," they wrote.
The three-man panel, including two judges appointed by Democratic presidents and one appointed by a Republican, is likely to take weeks or months to reach a decision, which then could be appealed to the full 9th Circuit, or to the Supreme Court.
(Reporting by Peter Henderson and Dan Levine, Editing by Sandra Maler)