Appeals court turns to state on key Prop. 8 issue

(01-04) 18:36 PST SAN FRANCISCO -- California's highest court, which has issued three rulings on same-sex marriage in less than seven years, was handed another crucial question Tuesday - whether sponsors of a voter-approved measure banning gay and lesbian weddings have the right to defend it in court.

The state Supreme Court was brought into the fray by the Ninth U.S. Circuit Court of Appeals in San Francisco, which heard arguments last month about whether Proposition 8, the 2008 initiative outlawing same-sex marriage, is constitutional.

Then-Gov. Arnold Schwarzenegger and ex-Attorney General Jerry Brown refused to appeal a federal judge's ruling in August that the measure unconstitutionally discriminated based on sexual orientation and gender. So the future of the case depends on whether Prop. 8's sponsor, a conservative religious coalition called Protect Marriage, has legal standing - the right to represent the interests of the state and its voters.

If not, the federal appeals court could uphold Chief U.S. District Judge Vaughn Walker's ruling and restore same-sex marriage in California - legalized briefly by a 2008 state Supreme Court ruling - without deciding whether Prop. 8 is constitutional.

Judges' view

The three-member panel, Judges Stephen Reinhardt, Michael Hawkins and N. Randy Smith, made its view clear Tuesday: that California's initiative process "would appear to be ill-served" if elected officials could nullify a voter-approved initiative by refusing to defend it.

But the judges said they need advice from the California Supreme Court, the final interpreter of state law, on whether sponsors of an initiative can defend it on their own. The federal court would use that advice to decide whether the case could proceed, a decision that the U.S. Supreme Court might ultimately review.

The California court has allowed initiative supporters to argue in favor of a measure's validity but has never said whether they could do so if the state did not join in. The U.S. Supreme Court, in a 1997 Arizona case, said it had "grave doubts" that a ballot measure's sponsors could stand in for state officials.

More delay

If the California justices decide to take up the question, it will add months of delay to a case that was argued before the appeals court on Dec. 6.

The lawyer for two same-sex couples who sued for the right to marry, Theodore Olson, said the plaintiffs are confident the state court will respond "fully and expeditiously, given the vital importance of this case to hundreds of thousands of Californians who are being discriminated against daily by the existence of Proposition 8."

Andrew Pugno, a lawyer for Protect Marriage, said the state court has the opportunity to reaffirm sponsors' right to defend voter-approved initiatives, "particularly when public officials abdicate their constitutional duties."

History of rulings

The marriage issue first reached the California court in 2004, when it overturned San Francisco Mayor Gavin Newsom's decision to allow same-sex couples to wed at City Hall.

The justices struck down state laws banning same-sex marriage in May 2008, but ruled a year later that voters had the right to overturn their decision by passing Prop. 8, a state constitutional amendment.

Chief Justice Ronald George, who wrote all three rulings, stepped down from the court Monday and was succeeded by Tani Cantil-Sakauye, a Schwarzenegger appointee who did not consider any gay-rights cases during five years as an appellate justice.

Imperial County tossed

In a separate order Tuesday, the federal court denied standing to Imperial County, which had sought to enter the Prop. 8 case and defend the ballot measure that 70 percent of its voters supported.

The court said the county had no independent authority over marriage, apart from carrying out state law, and noted that the elected county clerk - whose duties might be affected by the case - had not joined the appeal.

Attorney Robert Tyler of Advocates for Faith and Freedom, who represented the county, criticized the ruling and said he would consult with officials on their next steps.

Also Tuesday, Reinhardt, a 1980 appointee of President Jimmy Carter who is one of the nation's most liberal judges, issued a long-awaited explanation of his refusal to step down from the Prop. 8 appeal.

Protect Marriage had asked Reinhardt to disqualify himself because his wife, Ramona Ripston, is executive director of the American Civil Liberties Union of Southern California. Her office filed arguments against Prop. 8 before Walker but has not taken part in the appeals court proceedings.

Ripston's views "are her own, and cannot be imputed to me," Reinhardt said. "Because my wife is an independent woman, I cannot accept (Protect Marriage's) position that my impartiality might reasonably be questioned."

Chronicle staff writer

Kevin Fagan contributed

to this report.

E-mail Bob Egelko at begelko@sfchronicle.com.

This article appeared on page A - 1 of the San Francisco Chronicle