Gay marriage goes before largest U.S. appeals court

SAN FRANCISCO -- The judge who overturned California's gay marriage ban was unrelenting in his repudiation of the measure, saying such laws are mean-spirited and unconstitutional to the core.

It was a harsh yet carefully worded ruling that some experts said would be tough to overturn as the landmark legal debate goes to the appeals court and then possibly to the U.S. Supreme Court. Others say the power of conservative judges on those courts could be enough to thwart gay marriage and stop the movement in its tracks.

Sure to be at the center of the debate is whether California's Proposition 8 violates the 14th Amendment, which guarantees equal protection for all and declares government won't take away "life, liberty or property" without due process.

U.S. District Judge Vaughn Walker said several times in his ruling that he believes gay marriage bans clearly deprive people of those rights.

Experts say the court will play a huge role in determining the future of the case.

A randomly selected three-judge panel of the court will consider the case next. The 9th Circuit is viewed as a liberal court, but its sheer size of 27 active judges and the many cutting-edge legal issues it receives from western states leaves it with an inconsistent track record.

Legal experts such as Stanford University law professor Michael Wald said that Walker's opinion was strongly worded, well-reasoned and could be difficult to overturn.

Wald said it's significant that Walker made a voluminous "findings of fact" that showed Proposition 8 was unconstitutional. The "findings of fact" phrasing is important because appeals courts have to pay deference to those conclusions, essentially they have to assume that the findings are true.

"Walker held that there is one fundamental right to marry and excluding gays from enjoying that right is unconstitutional," Wald said.

Others weren't so sanguine about the fate of gay marriage before the 9th Circuit.

They said the political makeup of the three-judge panel will make all the difference, playing even a bigger role than Walker's opinion in shaping the future of gay marriage.

Even though the court is known as a liberal one, the 27 active judges sitting on the court represent every conceivable point along the political spectrum. Its judges are drawn from the nine western states where its decisions are law.

"Everything depends on which 9th Circuit judges get picked randomly to sit on the case," said University of California, Davis law professor Vikram Amar.

Amar said that the nationwide debate over gay marriage shows just how unsettled the issue is and that conservative judges hew closer to keeping the status quo than taking large legal leaps to rule in favor of significant social change. He noted that 44 states don't allow gay marriages.

"It's easy to imagine the court wanting to make sure we're not rushing ahead with an experiment that may have unintended consequences," Amar said. "They could be content to let the issue percolate longer."

Walker has agreed to block gay marriages until at least Friday so he can consider arguments on whether to keep the ban in effect while the case is appealed.

The 9th Circuit also has the power to authorize marriages while it considers the appeal, though most experts believe the court will keep California's gay marriage ban in place until it decides the issue.

More than half the active judges were appointed by Democrats, but the court still consists of several reliable conservative jurists such as Oregon's Diarmuid O'Scannlain and California's Carlos Bea.

Chief Judge Alex Kozinski was first appointed a federal judge at age 32 by President Ronald Reagan and elevated three years later to the 9th Circuit. He is widely regarded as one of the bench's best writers and is viewed as a Libertarian who is tough on criminals but protective of individual rights and privacy.

Kozinski has no control over which three judges get assigned the case. Such decisions are randomly made by a computer program.

But Kozinski, as chief judge, would sit on the so-called "en banc" panel of 11 judges that are convened in rare cases to reconsider a three-judge decision. That happens when a majority of active judges vote to toss-out the three-judge ruling and rehear the case with the en banc court.