Civil and Human Rights

Prop. 8 Backers Ask Appeals Court to Reconsider Decision Striking Down Calif. Gay Marriage ban

By Lisa Leff

SAN FRANCISCO — Same-sex couples in California will have to wait a while to find out if they have regained the right to get married, after the backers of the state’s gay marriage ban petitioned a federal appeals court to review a split decision by three of its judges that struck down Proposition 8.

Lawyers for a coalition of religious and legal groups on Tuesday asked the 9th U.S. Circuit Court of Appeals to rehear the 2-1 decision that declared the voter-approved ban to be a violation of the federal civil rights of gay and lesbian Californians, opting for now to avoid taking their chances with the U.S. Supreme Court.

“After careful consideration, we determined that asking for reconsideration by the full Ninth Circuit is in the best interests of defending Prop. 8,” said Andy Pugno, general counsel for the Protect Marriage coalition. “This gives the entire 9th Circuit a chance to correct this anomalous decision by just two judges overturning the vote of seven million Californians.”

If Proposition 8’s sponsors had not sought the 9th Circuit’s reconsideration by a midnight deadline, the three judges would have let the ruling take effect in another seven days, clearing the way for same-sex marriages to resume in the state for the first time since Proposition 8 passed.

Instead, same-sex marriages will remain on hold at least until the 9th Circuit decides to accept or reject the rehearing petition. The court does not face a deadline for doing so, and if it agrees to take the case, it could order another round of legal arguments that would further delay a final ruling.

Although the closely watched case is expected to reach the Supreme Court eventually, legal experts said supporters of the ban could be exhausting all their options before asking the high court to intervene. If a majority of the 9th Circuit’s 25 actively serving judges agree to reconsider the case, it would be assigned to a panel that includes the chief judge and 10 randomly selected judges.

“I think it is a bit of a gamble, but they could be hoping for more persuasive dissents,” Elizabeth Wydra, chief counsel for the Constitutional Accountability Center, said. “Whether it’s before the en banc 9th Circuit or the Supreme Court, I think their arguments ultimately are going to lose.”

Stanford University law professor Jane Schacter said that while the 9th Circuit does not often reverse the decisions of member judges, Prop. 8 backers might believe a ruling by a bigger appeals court panel could yield a decision more likely to pique the interest of the Supreme Court. The two judges who rejected Prop. 8 two weeks ago focused their decision exclusively on California’s ban, even though the court has jurisdiction in nine western states.

Analysts have said that made it less likely the Supreme Court would take the case on appeal.

“If the en banc decision was broad, it might be more likely to draw attention of the Supreme Court because it would be a decision with national reverberations,” Schacter said.

Proposition 8 amended the California Constitution to outlaw same-sex marriages five months after the state Supreme Court threw out a pair of statutes that limited marriage to a man and woman. The proposition was approved by voters in November 2008 with 52 percent of the vote.

The 9th Circuit panel said in its Feb. 7 ruling that the amendment violated the U.S. Constitution’s promise of equal protection because it singled out a minority group for disparate treatment for no compelling reason.

The lone dissenting judge insisted that the ban could have served a legitimate purpose in the minds of its supporters: namely, helping to ensure that children are raised by married, opposite-sex parents.

In the petition filed Tuesday, lawyers for the ban’s supporters said the 9th Circuit panel overlooked a 1972 Supreme Court precedent in a 1972 same-sex marriage case that should have been binding on their deliberations and misapplied the high court’s 1996 decision overturning a Colorado measure that outlawed discrimination protections for gay people.

“Disapproving of the redefinition of marriage to include same-sex couples is plainly not the same as disapproving same-sex couples as a people,” the petition states. “Do President Obama and a host of other prominent champions of equal rights for gays and lesbians support the traditional definition of marriage solely to disapprove of gays and lesbians as a class and to dishonor same-sex couples as a people?”

Six states allow gay couples to wed — Connecticut, New Hampshire, Iowa, Massachusetts, New York and Vermont — as well as the District of Columbia. The governor of Washington signed a bill this month that would make that state the seventh.

But California, as the nation’s most populous state and home to more than 98,000 same-sex couples, would be the gay rights movement’s biggest prize of them all.

“Today’s petition shows how far the anti-marriage proponents of Proposition 8 will go to ensure that gay and lesbian Americans remain second-class citizens,” said Chad Griffin, president of the American Foundation for Equal Rights, which sued to overturn the California ban. “Separate is never equal — and I am confident that one day, very soon, every American will be able to enjoy the fundamental freedom to marry.”

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