June 5, 2012 | 10:57am - Los Angeles Times
The U.S. 9th Circuit Court of Appeals’ decision to deny an appeal
of February’s ruling against Proposition 8 paves the way for a U.S. Supreme
Court decision on gay marriage by next year.
The decision means the U.S. Supreme Court is likely to have two major
gay-rights cases on its docket in the near future. Another federal
appeals court last week struck down a federal law that denied federal
recognition to same-sex marriage.
Backers of Proposition 8 said they will ask the U.S. Supreme Court to
review the 9th Circuit ruling.
Proposition 8, passed by California voters in November 2008, reinstated a
ban on same-sex nuptials six months after the state Supreme Court had struck
it down on state constitutional grounds. The ballot measure amended the state
constitution. Two same-sex couples then sued in federal court, contending that
Proposition 8 violated the U.S. Constitution.
A three-judge panel ruled 2-1 in February that the ban violated federal
constitutional guarantees but limited the effect of the ruling to California.
Sponsors of Proposition 8 asked the 9th Circuit to assemble an
11-judge panel to rehear the case.
A majority of the circuit’s active judges voted against such
reconsideration.
On Tuesday, Judge Diarmuid O’Scannlain, joined by two other jurists, wrote in
a dissent that President Obama, in declaring his personal support for same-sex
marriage, said it was a matter for states to decide.
“We have overruled the will of seven million California Proposition 8
voters,” O’Scannlain wrote. “We should not have so roundly trumped California’s
democratic process without at least discussing this unparalleled decision as an
en banc court.”
Judges Stephen Reinhardt and Michael Daly Hawkins, who voted in
February to overturn Proposition 8, responded in a concurring opinion that
their ruling was narrow.
“We held only that under the particular circumstances relating to
California’s Proposition 8, that measure was invalid. In line with the rules
governing judicial resolution of constitutional issues, we did not resolve the
fundamental question that both sides asked us to: whether the Constitution
prohibits the states from banning same-sex marriage.
“That question may be decided in the near future, but if so, it should be in
some other case, at some other time.”
The court’s brief order Tuesday also said that Judge N.R. Smith, who
dissented in the February ruling, favored review by an 11-member en
banc panel of the court.
“The final chapter of the Proposition 8 case has now begun,” said Chad
Griffin, founder of a group that is financing the legal fight to overturn
Proposition 8. “Should the United States 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.”
Marriage Equality, another gay rights group, noted that opponents of
gay marriage have 90 days to request review by the U.S. Supreme Court.
“Earlier this year, a three-judge panel of the 9th Circuit held that
Proposition 8’s targeting lesbian and gay people and taking away their freedom
to marry violated the equality and fairness guarantees of the United States
Constitution,” said John Lewis, Marriage Equality USA’s legal
director.
“Today, a majority of the Court agreed, by declining to revisit the
ruling. If the United States Supreme Court also declines to review the
case, loving, committed lesbian and gay couples could be able to marry again in
California later this year or early next year.”
RELATED:
Supreme Court may not hear Prop. 8 appeal
Same-sex marriage won't resume immediately
Ruling to have limited effect outside California
-- Maura Dolan in San Francisco