Experts: Marriage ban's path to high court unclear

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.