The 9th Circuit Court of Appeals on Tuesday declined to review a February decision by a panel of its judges that upheld a lower court’s finding that Prop. 8 is unconstitutional.
Backers of Prop. 8, a November 2008 ballot measure that banned same-sex marriage in California, had asked for an en-banc hearing of the case by 11 of the court’s judges, as opposed to the three-judge panel that decided the case earlier this year.
Supporters will now have 90 days to appeal the case to the U.S. Supreme Court. A stay was immediately placed pending the possible appeal.
If backers do not appeal, or if the nation’s top court declines to review the case, marriage equality will again be the law of the land in the country’s most populous state.
The case, Perry v. Brown, was filed on behalf of two same-sex couples in 2009 and, after a lengthy trial, District Court Judge Vaughn Walker ruled the following year that Prop. 8 violated the federal constitutional guarantees of equal protection and due process, a ruling affirmed earlier this year by the appellate panel.
An en-banc hearing would have required majority support by the 25 judges on the 9th Circuit, which it failed to achieve.
Chad Griffin, co-founder of the American Foundation for Equal Rights, the sponsor of the case, called Tuesday’s order “yet another federal court victory for loving, committed gay and lesbian couples in California and across the nation.”
Griffin added that the “final chapter” of the Prop. 8 case has been set in motion.
“Should the U.S. Supreme Court decide to review the 9th Circuit’s decision in our case, I am confident that the justices will stand on the side of fairness and equality,” Griffin said.
Last week, a federal appellate court in Massachusetts found the Defense of Marriage Act, which prevents the federal government from recognizing same-sex marriage, to be unconstitutional, weeks after President Obama came out in favor of marriage equality.
The dissenting opinion in Tuesday’s ruling was authored by Judge Diarmuid O’Scannlain with two supporters, who cited Obama’s recent call for “respectful” conservations among states about marriage equality as a basis for sending the case to an en-banc hearing. The judges also expressed hesitance to overrule the majority of California voters and doubt that antigay animus was the only motivation for the state to “remain committed to a definition of marriage that has existed for millennia.”
“We should not have so roundly trumped California’s democratic process without at least discussing this unparalleled decision as an en-banc court,” the judges wrote.
Judges Stephen Reinhardt and Michael Hawkins said in the majority opinion, however, that they were “puzzled” by the dissenting judges’ “unusual reliance” on the president’s views, especially since Obama never addressed the narrow constitutional issues regarding Prop. 8. The judges went on to note that the appellate panel only dealt with the constitutionality of Prop. 8, and not the larger issue of whether banning same-sex marriage is constitutional.
Jen Colletta can be reached at email@example.com.