Bob Egelko, Chronicle Staff Writer
San Francisco Chronicle
Tuesday, December 7, 2010

(12-06) 18:10 PST SAN FRANCISCO — The federal appeals court in the Proposition 8 case hinted Monday at a ruling that would allow gays and lesbians to marry in California while leaving other states’ laws intact – a restrained approach seemingly designed to appeal to the U.S. Supreme Court.

Lawyers challenging the 2008 initiative urged the Ninth U.S. Circuit Court of Appeals in San Francisco to uphold a federal judge’s ruling in August that Prop. 8 violated the U.S. Constitution because its definition of marriage as the union of a man and a woman discriminated on the basis of gender and sexual orientation.

But in a nationally televised, 2 1/2-hour hearing, the three-judge appellate panel seemed intent on framing the case more narrowly before it reaches the Supreme Court.

Judges Michael Hawkins and Stephen Reinhardt compared the case to a 1996 Supreme Court ruling overturning a Colorado initiative that prohibited local governments from enacting civil rights laws protecting gays and lesbians.

Without deciding whether the Constitution banned all anti-gay discrimination, the high court said stripping rights from a minority group, for no apparent reason other than moral disapproval, was unconstitutional.

What’s different?

Hawkins noted that California voters approved Prop. 8 six months after the state Supreme Court ruled that gays and lesbians had the right to marry.

“How is that different from what happened in Colorado?” he asked Charles Cooper, the lawyer for Prop. 8’s sponsors.

Cooper replied that the Colorado initiative eliminated numerous rights of gays and lesbians, while Prop. 8 preserved the definition of marriage “that has prevailed in this country and in all places since time immemorial.”

But Hawkins questioned whether it mattered that one state had abolished more rights than another.

Theodore Olson, lawyer for the couples who sued to overturn Prop. 8 – Kristin Perry and Sandy Stier of Berkeley, and Paul Katami and Jeff Zarrillo of Burbank – argued that the Constitution forbids a state from denying “equal access to the fundamental right to marry.”

“Do we have to reach that point?” asked Reinhardt, the court’s leading liberal. He cited Supreme Court admonitions to decide cases as narrowly as possible.

Third judge’s view

The third panel member, Judge N. Randy Smith, also suggested limiting the scope of the case.

Smith noted that California grants gay and lesbian couples the same rights as heterosexuals, including child custody and property rights, while denying them only the ability to marry.

“What is the rational basis for that?” he asked Cooper.

The Prop. 8 forces’ lawyer replied that it was rational to maintain the historic meaning of marriage while treating same-sex couples equally in other respects.

If the court relies on the Colorado ruling in overturning Prop. 8, the decision would apply to California but not to other states that had never recognized same-sex marriage before prohibiting it.

The approach that Smith suggested might affect other states that legalized domestic partnerships or civil unions but not same-sex marriage. At other points, Smith asked questions indicating he might vote to uphold Prop. 8.

Question of standing

Outside the courthouse at Seventh and Mission streets, groups of demonstrators assembled with competing messages invoking biblical condemnations and declarations of equal rights.

Inside, the judges expressed some uncertainty about whether they could even rule on the validity of Prop. 8.

Gov. Arnold Schwarzenegger and Attorney General Jerry Brown declined to defend the initiative in court and refused to appeal the Aug. 4 ruling by Chief U.S. District Judge Vaughn Walker that declared the measure unconstitutional.

Walker, citing a 1997 Supreme Court ruling, expressed doubt whether an initiative’s sponsors have legal standing – the right to represent the state in an appeal.

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