California Experts: Marriage ban's path to high court unclear Appeals court purposefully limited scope of decision in case

By Lisa Leff

Associated Press

SAN FRANCISCO (AP) -- Conservative critics like to point out that the federal appeals court that on Tuesday declared California's same-sex marriage ban to be unconstitutional has its decisions overturned by the U.S. Supreme Court more often than other judicial circuits -- a record that could prove predictive if the high court agrees to review the case on appeal.

Yet legal experts seem to think the panel of the 9th U.S. Circuit of Appeals that struck down the voter-approved ban purposefully served up its opinion in a narrow way so the Supreme Court would be less tempted to reject it.

The appeals court said the voter-approved Proposition 8 violated the civil rights of gay and lesbian Californians.

The court limited the scope of its decision to California and relied on the Supreme Court's own 1996 decision overturning a Colorado measure that outlawed discrimination protections for gay people.

"There is no reason to believe four justices on the Supreme Court, which is what it takes to grant (an appeal) petition, are champing at the bit to take this issue on," University of Michigan law school professor Steve Sanders said. "The liberals on the court are going to recognize this was a sensible, sound decision that doesn't get ahead of the national debate ... and I don't think the decision would be so objectionable to the court's conservatives that they would see a reason to reach out and smack the 9th Circuit."

Lawyers for the coalition of religious conservative groups that support Proposition 8 said they have not decided whether to ask a bigger 9th Circuit to rehear the case or to take an appeal directly to the Supreme Court. However, they said they were optimistic that if the high court accepts an appeal, Tuesday's ruling would be reversed.

"Ever since the beginning of this case, we've known that the battle to preserve traditional marriage will ultimately be won or lost not here, but rather in the U.S. Supreme Court," Andy Pugno, the coalition's general counsel, said in a fundraising letter to Proposition 8's supporters.

Regardless of their next steps, gay and lesbian couples were unlikely to be able to get married in California anytime soon. The 9th Circuit panel's ruling will not take effect until after the deadline passes in two weeks for Proposition 8's backers to appeal to a larger panel, and the earliest the Supreme Court could consider whether to take the case would be in the fall.

California since 2005 has granted same-sex couples all the rights and benefits of marriage if they register as domestic partners. Five months before Proposition 8 was enacted as a state constitutional amendment, the California Supreme Court's Court had legalized same-sex marriage by striking down a pair of laws that had limited marriage to a man and a woman.

California is the only state, therefore, where gays have won the right to marry and had it stripped away.

Proposition 8 "serves no purpose, and has no effect, other than to lessen the status and humanity of gays and lesbians," Judge Stephen Reinhardt wrote in the appeals court's ruling.

The amendment's "singular" work of denying gay Californians the designation of marriage while leaving in place domestic partnerships proves that Proposition 8 is meant to deprive same-sex relationships of society's dignity and respect, Reinhardt wrote.

"A rose by any other name may smell as sweet, but to the couple desiring to enter into a committed lifelong relationship, a marriage by the name of 'registered domestic partnership' does not," he said.

Published: Thu, Feb 9, 2012