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The Prop. 8 show

Monday's hearing on the same-sex marriage ban by an appeals court panel will be must-see TV.

December 06, 2010

Forget the latest episode of "House." The big TV event on Monday, at least in California, will be the U.S. 9th Circuit Court of Appeals hearing on Proposition 8, airing on C-SPAN. A panel of two judges known to have liberal leanings and one with a more conservative reputation will consider the state's ban on same-sex marriage, passed by voters in 2008 but tossed out by a federal judge earlier this year.

We agree with U.S. District Judge Vaughn R. Walker's ruling that found the proposition unconstitutional, and with his finding that gay men and lesbians have historically been targets of discrimination. As such, they are entitled to the highest level of protection from the courts under the 14th Amendment to the U.S. Constitution against new laws that seek to strip them of their rights -- including the right to marry. We also agree that there was no rational basis for Proposition 8. During the trial, even opponents of gay marriage were unable to articulate any ways in which such marriages would harm those of heterosexual couples, one of the contentions made by the defense. The defense's other claims -- that heterosexual couples make better parents and that the purpose of marriage is responsible procreation -- also fell apart under the lightest of scrutiny.

No ruling is expected Monday, and no matter what the outcome, the case almost certainly will be appealed to the U.S. Supreme Court. When that happens, the appeals might center as much on two legal side issues as on the crucial constitutional matters. One of those issues is whether one of the judges should have recused himself because of his wife's involvement in the case.

The judge is Stephen Reinhardt, known as perhaps the 9th Circuit's most liberal jurist. Reinhardt is married to Ramona Ripston, the longtime executive director of the Southern California chapter of the American Civil Liberties Union. Ripston, who will step down from her position in February, reportedly was consulted early on by the lawyers who eventually filed the federal suit, and the ACLU -- but a different chapter -- filed a brief on behalf of the plaintiffs. The ACLU also was among the groups filing in the state lawsuit against the initiative. As a result, proponents of Proposition 8 asked Reinhardt to step down from the case. He has refused.

The situation falls into a gray area of judicial ethics. Certainly, judges shouldn't back away from cases just because their spouses have strong or even very public opinions. Just as certainly, Reinhardt would be obligated to step down if his wife were one of the lawyers arguing before the panel, or if she stood to make money or reap other tangible benefits from the outcome. But Ripston is not a lawyer in the case and her office is not a party to it. The ACLU, and Ripston herself, have been active opponents of Proposition 8, but that doesn't bring Reinhardt's ability to serve into legitimate question.

A single reported consultation before the suit was even filed is a slender thread on which to hang a request for recusal. Yet some legal experts see this as possibly giving Proposition 8's supporters some basis for complaint if the ruling goes against them. It's an unfortunate detour from the case's main concern: discrimination against homosexual couples and their families.

Another side issue in the lawsuit is whether the people who seek to uphold the marriage ban have the right to do so.

The original lawsuit challenging Proposition 8 in federal court was filed against Gov. Arnold Schwarzenegger and various state officials. The governor refused to defend the initiative; so did Atty. Gen. Jerry Brown. In our view, they were wrong: No matter how much we dislike Proposition 8 -- and we dislike it intensely -- it was passed by a majority of the state's voters, who have a right to expect that it will be defended in court.

During the trial, the initiative was defended by its supporters. But at the appellate level, the parties involved usually have to show that they would be directly affected by the original ruling. Because Walker found that same-sex marriages do not harm heterosexual marriages, the supporters of the ban face significant obstacles to their argument that they are directly affected. A recent twist in the case is a move by Imperial County to intervene at the appellate level as a governmental defender of Proposition 8, an effort that was rejected at the trial level.

Had California's top officials defended Proposition 8, their participation would have ensured that the appellate court would consider the constitutional issues. If the measure's supporters are found to lack legal standing, same-sex marriage will win the day in California. But this would make for a less-than-satisfying victory. The rights of gay and lesbian couples deserve to be argued -- and upheld -- on their merits rather than on a legal technicality.

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