The 9th U.S. Circuit Court of Appeals today denied a request by Proposition 8 backers to reconsider a ruling made earlier this year that found California's 2008 gay marriage ban unconstitutional. The court's decision opens the door for the challenge to be heard before the Supreme Court.
In a 2-1 decision made earlier in February, a three judge panel of the Federal Appeals Court invalidated Proposition 8 in a narrowly crafted decision which fell short of finding a constitutional right for same-sex couples to legally wed. The ruling essentially stated that in passing the ballot ban on same-sex marriage a minority group had their rights stripped without justification.
Outside of California, the February ruling would have had very limited effect, as it was based on the fact voters repealed a right minorities already enjoyed- gay marriage was legal for six months in California prior to the passage of Prop 8. More than 18,000 gay and lesbian couples were allowed to marry before voters approved the gay marriage ban in November of 2008, and those marriages remain valid under California law.
The court's decision today to deny Proposition 8 backers a chance to rehear the case with a special 11 judge panel came as expected. Many of the court's 25 full-time judges were appointed by the Clinton and Obama administrations, and for the most part are considered to favor upholding the prior ruling which struck down California's gay marriage ban. There were only three votes from judges in favor of rehearing the case: Diarmuid O'Scannlain, Carlos Bea and Jay Bybee.
This does not mean that same-sex marriages are legal again in California. The Federal Appeals Court decision is still subject to a 90 day stay pending the filing of a petition for "writ of certiorari" from the United States Supreme Court.
Proponents of California's gay marriage ban have already vowed to take the fight all the way to the Supreme Court, and today's move has cleared the way for them to do so.
According to the Associated Press:
Alliance Defense Fund lawyer Brian Raum said Proposition 8 backers "absolutely" would take the case to the high court now that it has run its course at the 9th U.S. Circuit Court of Appeals. Raum said he expected to get a ruling from the Supreme Court sometime in the fall on whether it would take the case. He did not know if the Proposition 8 defense team would take the entire 90 days they have to petition the Supreme Court.
If the U.S. Supreme Court does indeed decide to take up the case, it won't be until sometime later next year. However, if the Supreme Court denies to review the case and allows the lower court's ruling to stand, same-sex marriage will again be legal in California.
The court's majority decision has been released on its site and is available here: 9th U.S. Circuit Court of Appeals