Court hears argumentson gay marriage's impact

SAN FRANCISCO - A federal appeals court in San Francisco waded again into the debate of the constitutionality of gay marriage, with attorneys for both sides arguing over whether legalizing it would harm children.

The three judges on the 9th Circuit Court of Appeals - two of whom have ruled in previous cases in favor of gay rights - reserved many of their most pointed questions at the defenders of state bans in Idaho, Nevada and Hawaii.

Judge Marsha Berzon appeared critical of the attorney defending two of the bans, saying he was sending a message that families headed by same-sex couples were "second-rate."

"You're sending a message that these are less desirable families" she said. "That is what you're doing. That is what you say you're doing."

The hearing is the first time since it declared California's gay marriage ban unconstitutional that the 9th Circuit is listening to arguments over same-sex weddings in a political and legal climate that's vastly different than when it overturned Proposition 8 in 2012. State and federal court judges have been striking down bans in more than a dozen states at a rapid rate since a landmark U.S. Supreme Court ruling last year.

Attorney Monte Neil Stewart faced tough questions from Berzon as he defended Idaho's ban.

Stewart told the panel that same-sex marriage would undermine children's right to be raised by a father and mother. Same-sex marriage would undercut the message that a man who fathers a child should get in a relationship with the female mother, he said.

"This is a contest between two different messages," Stewart said. "The message of man-woman marriage is: 'Men, you're valuable and important in the upbringing of the children you bring into this world. Women, you are valuable and important in the upbringing of children you bring into this world.' Genderless marriage does not send that message; indeed it undermines it."

Berzon questioned how gay marriage differed from the current model of marriage, which she called "genderless." Berzon said with gay marriages occurring, "the train has already left the station."

Deborah Ferguson, an attorney representing gay marriage supporters opposed to Idaho's ban, said children of same-sex couples don't have the same protections as children of heterosexual couples.

"(They) don't have two legal parents to protect them," she said. "That is sending a powerful message. That tells those children that their parents' marriages aren't worthy of respect. That's a very harsh message."