Prop 8 Backers Ask Ninth Circuit to Reconsider

UPDATE: Backers of California's Prop 8 are asking the U.S. Ninth Circuit Court of Appeals to reconsider a recent ruling that found the state's voter-approved ban on same-sex marriage unconstitutional.

The development means that it is highly unlikely that the Supreme Court would take up the case before November's election, the Metro Weekly, a gay and lesbian newspaper in D.C., explains.

The Mercury News reports that Prop 8's lawyers are set to file papers later Tuesday urging the appeals court to rehear the case with an 11-judge panel, a process the court system uses on occasion to revisit major decisions before they reach the high court. This month's decision that struck down the same-sex ban came from a three-judge panel.

A majority of the Ninth Circuit's 25 full-time judges must vote to rehear the case with an 11-judge panel for that process to occur. According to the Mercury News, most observers don't believe there will be enough votes on the liberal-leaning circuit court to rehear the challenge, in which case Prop 8 supporters would then be free to push for the Supreme Court to take up the matter sometime in the future.

Tuesday, Feb. 7: A federal appeals court in San Francisco on Tuesday deemed California's ban on same-sex marriage unconstitutional, ruling that the state can't revoke gays' and lesbians' right to wed simply because a majority of voters disapprove.

"Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples," Judge Stephen Reinhardt wrote for the majority.

The 2-1 decision from a three-member panel of the Ninth Circuit Court of Appeals is a major victory for gay rights advocates, but does not end the legal fight over gay marriage in California once and for all. While the ruling upholds a previous decision from a U.S. district judge that ruled Prop 8 violates the civil rights of gays and lesbians, the ban's backers will still have the opportunity to appeal Tuesday's decision to the full Ninth Circuit or possibly take it directly to the Supreme Court, the Associated Press reports.

While the ruling technically makes same-sex marriage in California legal again, gays and lesbians will not be allowed to wed while the appeals process continues, something that will likely last for at least the next several months. Prop 8 supporters have indicated that they are likely to continue their legal defense of the voter-approved initiative, and many observers have predicted it will ultimately be decided by the Supreme Court.

The popular vote on the gay marriage ban was split nearly 50/50 back in 2008 when the voter initiative was on the state ballot, passing with 52.5 percent of the vote. In an August 2010 decision, U.S. District Judge Vaughn Walker ruled the ballot measure was a violation of the Constitution's equality guarantee. That decision however was put on hold while the Ninth Circuit considered the case.

The San Francisco Chronicle notes that Judge Reinhardt took care to craft a narrow decision that applies only to California, despite the fact that the federal court has jurisdiction over a total of nine Western states. The court focused its decision on the fact that California had granted gays the ability to wed and then revoked that right. Walker's ruling, in contrast, ruled that same-sex couples should have the right to marry nationwide.

Religious conservative groups had argued that Walker's decision should have been overturned because the now-retired judge was found to be in a long-term same-sex relationship. Tuesday's ruling found that Walker's sexual orientation should not be considered a conflict of interest in the case.