gay_cityhall_gavel.jpgA U.S. appeals court hearing arguments on Proposition 8 in San Francisco today appeared to be considering ways of issuing a narrow ruling or possibly sending the case on a detour to the California Supreme Court.

“I’m trying to find out how far we have to go if we accept your view of the case,” Judge Stephen Reinhardt told Theodore Olson, a lawyer for two same-sex couples, during a two-hour hearing at the courthouse of the 9th U.S. Circuit Court of Appeals.

Reinhardt asked whether the court should limit its ruling to California’s situation, rather than considering state same-sex marriage bans in general, if it agrees with Olson that Proposition 8 is unconstitutional.

“Are we free to do anything other than to say that in California, it was unconstitutional to take away the right to marry?” Reinhardt asked.

Reinhardt is one of three 9th Circuit judges who heard arguments on the initiative approved by California voters in 2008. The panel will issue a written ruling at a later date.

The sponsors of Proposition 8 are seeking to appeal a ruling in which U.S. District Judge Vaughn Walker overturned the measure on the ground that excluding gays and lesbians from marriage violates the U.S. Constitution’s guarantees of due process and equal treatment.

The appeals panel is looking at two issues: first, whether the initiative sponsors have the standing, or legal right, to appeal, and second, whether Proposition 8 is unconstitutional.

On the constitutional issue, Reinhardt noted that the U.S. Supreme Court has said courts should resolve cases on narrow rather than broad grounds if they are able to do so.

He suggested that if the appeals court finds Proposition 8 unconstitutional, it could limit its ruling to California rather than issuing a decision that could apply to other state laws.

The narrow ground would be that California has what Olson called a unique “crazy quilt of laws” on marriage rights.

While Proposition 8 forbids any new gay and lesbian marriages, the state Supreme Court has ruled that 18,000 such weddings performed before Proposition 8 was passed remain valid. The state also allows gays and lesbians to have domestic partnerships.

“There is a possibility that Proposition 8’s withdrawal of the right to marry isn’t constitutional under the circumstances that gay men and lesbians (previously) enjoyed that right and were given all the other aspects of marriage,” Reinhardt said.

Olson told the court, “You could decide this on the narrow ground,” but maintained, “There’s no doubt (Proposition 8) is discriminatory. I submit it can’t be justified under any standard.”

Attorney Charles Cooper, representing the initiative’s proponents and their committee, Protect Marriage, urged the court to uphold Proposition 8 on the ground that voters had a rational basis for approving it.

Cooper said voters were entitled to believe that restricting marriage to heterosexuals would promote responsible child-rearing by married biological parents.

“Sexual relationships between men and women naturally produce children,” unlike homosexual relationships, he told the panel.

The first half of the hearing was devoted to the issue of legal standing to appeal.

The appeals court had asked for arguments on whether the Proposition 8 sponsors had the right to appeal after the state officials named as defendants in the case, including Gov. Arnold Schwarzenegger and Attorney General Jerry Brown, declined to appeal.

The sponsors were allowed by Walker to defend the measure in the trial court.

If the court decides the sponsors had no right to appeal, that could end the case and leave Walker’s ruling in place. Theoretically, however, the appeals court could rule on the constitutionality question even if it decides that Proposition 8 sponsors had no standing.

David Boies, a lawyer for the two same-sex couples, argued it was “crystal clear” that the sponsors were not entitled to appeal under federal rules because they were not personally injured by the lower court ruling.

Reinhardt, a leading liberal on the appeals court who was appointed by President Jimmy Carter, then suggested, “Why shouldn’t we ask the California Supreme Court what the law is in California?

“Rather than kill an initiative the voters have passed, wouldn’t it be advisable to get an opinion from the California Supreme Court on whether there’s standing?”

Under an agreement between the federal appeals court and the state high court, the federal court can delay ruling on a case while it asks the California court to decide an issue of state law.

After the state court decides the issue–which in this case would be whether sponsors of a state voter initiative have the right to defend it on appeal–the case would go back to the 9th Circuit for a further ruling. The legal detour would take at least several months.

Cooper told the appeals judges he doesn’t object to their sending that question to the state Supreme Court.

“If you don’t agree with me that we have standing, then I do urge you do ask the California Supreme Court to decide this issue before you dismiss this case and allow a single district court decision to nullify the will of over 7 million Californians,” Cooper told the judges.

Randy Smith, a conservative appointed by President George W. Bush, said he was concerned that the governor’s refusal to defend Proposition 8 amounted to a veto of the initiative, which is not allowed under the state Constitution.

“My problem is that, in fact, the governor’s action and the attorney general’s action have essentially nullified the considerable efforts on behalf of the initiative to be placed on the ballot and obtain passage,” Smith said.

The panel’s eventual ruling can be appealed to an expanded 11-judge panel of the 9th Circuit and to the U.S. Supreme Court. Walker’s decision has been put on hold during the appeal.

In a news conference after the hearing, Boies predicted that same-sex marriage will one day be viewed as a civil rights issue similar to school integration ordered by the U.S. Supreme Court in Brown v. Board of Education in 1954.

“Twenty or 30 years from now, people will look back on this as they did on Brown v. Board of Education and say, ‘Why did it take so long?”‘ Boies said.

But Cooper told news reporters, “We believe that people of good will can disagree in good faith on this question.

“The place for this issue to be decided is where it was decided – by the electorate in the democratic process.”

Julia Cheever, Bay City News

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