By Susan Ferriss
sferriss@sacbee.com
Published: Monday, Dec. 6, 2010 – 12:00 am | Page 1A
Last Modified: Monday, Dec. 6, 2010 – 12:50 am

A dramatic new chapter in the legal fight over Proposition 8 opens today, with debate over the purpose of marriage, the power of social convention and the rights of gay individuals televised live from federal court for the first time.

First, however, a three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco will hear an hour of debate over whether backers of California’s Proposition 8 even have the right to defend the voter-approved measure.

Discussion of the historic ruling and its constitutional soundness, set for the second half of a two-hour hearing, is sure to be emotional and capture public attention “because it’s sexier stuff, no pun intended,” said Vik Amar, a University of California, Davis, constitutional law expert.

But the debate over merits may matter less, Amar said, if the judges ultimately focus only on the question of standing. They could disqualify the proponents or Imperial County – or both – because they don’t pass the constitutional test for standing in federal court.

The 2008 proposition amended California’s constitution to declare marriage to be only between a man and a woman.

Gov. Arnold Schwarzenegger has declined to defend the initiative and now says he thinks same-sex marriages should be allowed.

As attorney general, Gov.-elect Jerry Brown also refused to defend the measure, which he argues is unconstitutional.

One state jurisdiction, tiny Imperial County, has entered the fray, filing for legal standing to appeal U.S. District Judge Vaughn R. Walker’s August ruling that Proposition 8 violates gays’ constitutional rights and serves no rational government purpose.

Amar said that Imperial County, where almost 70 percent of voters approved of Proposition 8, could be sidelined because it is a single county angling for the role as state defender of the measure.

Proposition 8’s private attorneys could face scrutiny because they are not elected officials responsible for carrying out policies, and they are presuming to represent all voters who approved of Proposition 8.

How the judges interpret a 1997 U.S. Supreme Court opinion, among other opinions, Amar said, could be key. The opinion is relevant because it expressed “grave doubts” that proponents of a 1988 Arizona English-only measure had standing to appeal a federal court ruling that the initiative was unconstitutional.

Nothing in Arizona law deputized proponents to assume that role, the high court said.

Arizona’s elected officials had declined to defend the English-only measure.

But Amar agreed with Folsom attorney Andy Pugno, Proposition 8’s author, that the 1997 high court opinion, while strongly worded, was not definitive.

Amar also noted that one of the judges on the Proposition 8 panel, Stephen Reinhardt – who has ruled in favor of gay rights in labor cases – sided with proponents of Arizona’s English-only measure when they sought standing before the 9th Circuit.

If Imperial County and Proposition 8 proponents also convince the judges they have standing – and possibly even if they don’t – the panel could go on to deliver a momentous opinion that upholds or knocks down Walker’s finding.

Dozens of conservative activists, religious groups and some state attorneys general have filed briefs attacking Walker’s determination that Proposition 8 is unconstitutional.

Lead attorneys for the measure argue in documents that Walker’s ruling “defames as gay bigots not only 7 million California voters, but everyone else in this country, and elsewhere, who believes that the traditional opposite-sex definition of marriage continues to meaningfully serve the legitimate interests of society.”

Attorneys note that President Barack Obama has said that he views marriage as between a man and a woman. They also accuse Walker of ignoring legal precedents that bolster their views.

The National Organization for Marriage, a chief organizer of the Proposition 8 campaign, submitted a brief arguing that “gay marriage may undermine male willingness to sacrifice for children, by undermining the idea that children need their fathers.”

Attorneys for gay couples say that they will defend and build on Walker’s opinion that Proposition 8 attorneys failed to prove that gay marriage would harm children or heterosexuals, or that voters had reasons – other than bigotry – for cutting off gays from a basic right such as marriage.

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