In the second hour of the hearing on Prop. 8, the judges dug into the issue of whether the Constitution permits the state to make distinctions between same-sex and opposite-sex marriages.

Charles Cooper, who is arguing in favor of Prop. 8, argued that marriage exists for society to recognize relations between men and women that can lead to children.

"When a relationship between a man and a woman becomes a sexual one, society has a vital interest," Cooper said.

Judge Stephen Reinhart, one of a three-member panel of the U.S. 9th Circuit Court of Appeals hearing the case, appeared unconvinced.

"That sounds like a good argument for prohibiting divorce," he said, dryly. "But how does it relate to having two males or two females marry each other and have children as they have in California? I don’t understand how that argument says we ought to prohibit that?"

Judge N. Randy Smith raised another issue: Under California law, same-sex couples have all the rights of marriage except the word "marriage." Given that, he asked, how does Prop. 8 protect marriage?

Answered Cooper: "You are left with a word, but a word that is essentially the institution."

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-- Jessica Garrison