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Originally published February 8, 2012 at 3:31 AM | Page modified February 8, 2012 at 6:24 AM

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Experts: Marriage ban's path to high court unclear

Conservative critics like to point out that the federal appeals court that just 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 gay marriage case on appeal.

Associated Press

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SAN FRANCISCO —

Conservative critics like to point out that the federal appeals court that just 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 gay marriage case on appeal.

Yet legal experts seemed to think the panel of the San Francisco-based 9th U.S. Circuit of Appeals struck down the voter-approved ban on Tuesday purposefully served up its 2-1 opinion in a narrow way and seasoned it with established holdings so the Supreme Court would be less tempted to bite.

The appeals court not only limited the scope of its decision to California, even though the 9th Circuit also has jurisdiction in eight other western states, but relied on the Supreme Court's own 1996 decision overturning a Colorado measure that outlawed discrimination protections for gay people to argue that the voter-approved Proposition 8 violated the civil rights of gay and lesbian Californians.

That approach makes it much less likely the high court would find it necessary to step in, as it might have if the 9th Circuit panel had concluded that any state laws or amendments limiting marriage to a man and a woman run afoul of the U.S. Constitution's promise of equal treatment, several analysts said.

"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 qualified Proposition 8 for the November 2008 ballot and campaigned for its passage 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.

"The 9th Circuit's decision is completely out of step with every other federal appellate and Supreme Court decision in American history on the subject of marriage, but it really doesn't come as a surprise, given the history of the 9th Circuit, which is often overturned," Andy Pugno, the coalition's general counsel, said in a fundraising letter to Proposition 8's supporters. "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."

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.

Judge Stephen Reinhardt, who was named to the 9th Circuit by President Jimmy Carter and has a reputation as the court's liberal lion, wrote Tuesday's 80-page majority ruling with concurrence from Judge Michael Daly Hawkins, an early appointee of President Bill Clinton. Judge Randy Smith, who was the last 9th Circuit judge nominated by President George W. Bush, dissented.

In tailoring the decision to apply only to California, Reinhardt cited two factors that distinguish Proposition 8 from the one-man, one-woman marriage laws and constitutional amendments in the other 9th Circuit states and that he said demonstrate that it "serves no purpose, and has no effect, other than to lessen the status and humanity of gays and lesbians."

The first is that California since 2005 has granted same-sex couples all the rights and benefits of marriage if they register as domestic partners. The second is that 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.

The amendment's "singular" work of denying gay Californians the designation of marriage while leaving in place domestic partnerships proves that Proposition 8's 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. "We are excited to see someone ask, `Will you marry me?', whether on bended knee in a restaurant or in text splashed across a stadium Jumbotron. Certainly, it would not have the same effect to see, `Will you enter into a registered domestic partnership with me?'"

The opinion goes on to draw parallels between California's same-sex marriage ban and the Colorado opinion the Supreme Court struck down on a 6-3 vote after concluding that it was based on moral disapproval of gays. Justice Anthony Kennedy wrote the majority opinion in that case, known as Romer v. Evans, and if the court agrees to take up Proposition 8, the similarities could hit the "sweet spot" that might persuade him to side with four other justices in upholding the 9th Circuit, said Douglas NeJaime, an associate professor at Loyola Law School in Los Angeles.

"Everyone is looking to Justice Kennedy, assuming that Justice Kennedy would not issue a sweepingly bad decision for gay rights, and yet people don't know if he is ready to go so far as to say nationwide same-sex couples can get married," NeJaime said. "I think the opinion evidences a real savviness about the posture of this case and its position in the trajectory of a national movement for marriage for same sex couples."

Smith, the lone dissenting judge, disagreed that Proposition 8 necessarily served no purpose other than to treat gays and lesbians as second-class citizens. He pointed out that its backers claimed it could serve to promote responsible child-rearing among opposite-sex couples, and said courts were obligated to uphold laws in the face of civil rights challenges unless they were "clearly wrong, a display of arbitrary power (or) not an exercise of judgment."

"There is good reason for this restraint," Smith said.

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Associated Press writers Paul Elias, Garance Burke and Terence Chea in San Francisco, and Raquel Dillon in Los Angeles contributed to this report.

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Online:

AP interactive: http://hosted.ap.org/interactives/2011/gay-marriage

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