<B><I>BREAKING NEWS:</b></i> <b>Ninth Circuit Sides With Gay Couples in 2-1 Ruling on Prop 8</b>

The majority punted on the broader question of whether marrying a partner of the same sex should be a fundamental right which scholars said was a move designed to help the opinion withstand Supreme Court review.

“The court tried to rule narrowly and in a way most likely to appeal to Justice [Anthony] Kennedy,” the presumptive swing vote, said UC-Irvine law school Dean Erwin Chemerinsky.

Lawyers for the gay couple plaintiffs acknowledged that the scope of the holding may make the opinion somewhat less likely to be reviewed by the Supreme Court.

“This is an opinion, by its terms, [that] technically just applies to California,” said David Boies, of Boies, Schiller & Flexner. But fellow lead lawyer, Theodore Olson, of Gibson, Dunn & Crutcher, noted that while it's California-centric, it has broader implications because of strong language condemning the law for taking away the right to marriage in violation of the Equal Protection Clause.

“This is a very significant milepost on the way to equality in this country,” Olson said.

Their team had argued for a more sweeping ruling, while the court adopted the more narrow approach advanced by the San Francisco city attorney's office, which has been central in the push for same-sex marriage.

Both the majority and dissenting opinions carried messages aimed at the public as well as the high court. “Our personal views regarding the political and sociological debate on marriage equality are irrelevant to our task,” Smith said in the opening of his dissent. He would subject Prop 8 to rational basis review, which looks at whether government action is rationally related to a legitimate public purpose. He said a number of posited bases, including “responsible procreation” and “optimal parenting” theories, met that low threshold.

As expected, proponents vowed to appeal.

Andrew Pugno, the Folsom lawyer for ProtectMarriage.com, the official proponents of Prop 8, blamed an appeals court “out of step” with other courts, a battle backed by “Hollywood elite,” and a trial judge who kept his own same-sex relationship a secret.

“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,” Pugno said in prepared remarks.

His side, led by Charles Cooper and David Thompson of Cooper & Kirk in Washington, D.C., prevailed on the argument that they have legal standing to push forward with the appeal. The case took a detour to the California Supreme Court last year to resolve that question.

The opinion unanimously rejected an attempt to undo the district court's ruling on the grounds that the trial judge, former U.S. District Judge Vaughn Walker, did not disclose he was in a long-term relationship with a man.

The court stayed the ruling until later this month when the proponents have a deadline to seek rehearing.

Olson said his team will likely attempt to have the stay lifted at the next opportunity. “The constitutional rights cannot wait any longer,” he said.

Ginny LaRoe writes for The Recorder, the San Francisco-based ALM affiliate of The Matrimonial Strategist.

Taking a narrow approach in deciding the blockbuster challenge to California's ban on gay marriage, a split panel of the Ninth Circuit U.S. Court of Appeals on Feb. 7 found Proposition 8 unconstitutional. (See the opinion here.)

Writing for the majority, Judge Stephen Reinhardt said the ban runs afoul of the Equal Protection Clause, serving no purpose other than “to lessen the status and human dignity” of gays in California who could legally marry for a few months before the 2008 vote on Prop 8. The Constitution, Reinhardt wrote, citing the U.S. Supreme Court's Romer v. Evans, does not allow for “laws of this sort.”

“Because under California statutory law, same-sex couples had all the rights of opposite-sex couples, regardless of their marital status, all parties agree that Proposition 8 had one effect only,” Reinhardt wrote. “It stripped same-sex couples of the ability they previously possessed to obtain from the state, or any other authorized party, an important right ' the right to obtain and use the designation of 'marriage' to describe their relationship. Nothing more, nothing less.” Senior Judge Michael Daly Hawkins joined Reinhardt in Perry v. Brown, 10-16696. The panel's sole Republican appointee, Judge N. Randy Smith, wrote a dissent.

The majority punted on the broader question of whether marrying a partner of the same sex should be a fundamental right which scholars said was a move designed to help the opinion withstand Supreme Court review.

“The court tried to rule narrowly and in a way most likely to appeal to Justice [Anthony] Kennedy,” the presumptive swing vote, said UC-Irvine law school Dean Erwin Chemerinsky.

Lawyers for the gay couple plaintiffs acknowledged that the scope of the holding may make the opinion somewhat less likely to be reviewed by the Supreme Court.

“This is an opinion, by its terms, [that] technically just applies to California,” said David Boies, of Boies, Schiller & Flexner. But fellow lead lawyer, Theodore Olson, of Gibson, Dunn & Crutcher, noted that while it's California-centric, it has broader implications because of strong language condemning the law for taking away the right to marriage in violation of the Equal Protection Clause.

“This is a very significant milepost on the way to equality in this country,” Olson said.

Their team had argued for a more sweeping ruling, while the court adopted the more narrow approach advanced by the San Francisco city attorney's office, which has been central in the push for same-sex marriage.

Both the majority and dissenting opinions carried messages aimed at the public as well as the high court. “Our personal views regarding the political and sociological debate on marriage equality are irrelevant to our task,” Smith said in the opening of his dissent. He would subject Prop 8 to rational basis review, which looks at whether government action is rationally related to a legitimate public purpose. He said a number of posited bases, including “responsible procreation” and “optimal parenting” theories, met that low threshold.

As expected, proponents vowed to appeal.

Andrew Pugno, the Folsom lawyer for ProtectMarriage.com, the official proponents of Prop 8, blamed an appeals court “out of step” with other courts, a battle backed by “Hollywood elite,” and a trial judge who kept his own same-sex relationship a secret.

“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,” Pugno said in prepared remarks.

His side, led by Charles Cooper and David Thompson of Cooper & Kirk in Washington, D.C., prevailed on the argument that they have legal standing to push forward with the appeal. The case took a detour to the California Supreme Court last year to resolve that question.

The opinion unanimously rejected an attempt to undo the district court's ruling on the grounds that the trial judge, former U.S. District Judge Vaughn Walker, did not disclose he was in a long-term relationship with a man.

The court stayed the ruling until later this month when the proponents have a deadline to seek rehearing.

Olson said his team will likely attempt to have the stay lifted at the next opportunity. “The constitutional rights cannot wait any longer,” he said.

Ginny LaRoe writes for The Recorder, the San Francisco-based ALM affiliate of The Matrimonial Strategist.