Bloomberg News

California Gay Marriage Foes Seek Rehearing to Reinstate Ban

February 22, 2012

(Updates with vote necessary for rehearing in fourth paragraph.)

Feb. 21 (Bloomberg) -- Proponents of California’s Proposition 8 ban on gay marriage asked a federal appeals court to reconsider a ruling by two of its members that struck down the measure this month.

Lawyers for Proposition 8 backers today asked that a larger panel of judges at the U.S. Court of Appeals in San Francisco rehear their appeal of a federal judge’s 2010 ruling that the marriage ban violates equal protection rights of gay and lesbian couples. On Feb. 7 a three-judge panel of the court voted 2-1 to uphold the 2010 ruling. They kept in place an order that maintains Proposition 8 as law in the state.

“The panel majority erred in breaking with the uniform and binding precedent upholding the constitutionality of laws adopting the traditional definition of marriage,” said Charles Cooper, an attorney for Proposition 8 defenders, in a court filing today.

The case will be reheard if one of the appeals court’s 25 active judges asks for a vote on whether to rehear the case and 13 judges favor review, said David Madden, a court spokesman. There’s no deadline for the court to act on the petition for rehearing. If no judge seeks a vote on rehearing, Proposition 8 proponents could petition the U.S. Supreme Court to hear the case. The proponents said on Feb. 7 that they hoped the measure would be upheld by the nation’s highest court.

Theodore Boutrous, an attorney for couples that sued to strike down Proposition 8, said the plaintiffs oppose rehearing in the San Francisco appeals court.

‘Ready to Defend’

“We are ready to defend our victory whatever path this case takes,” Boutrous said in an e-mailed statement.

Proposition 8, which amended California’s constitution to say that marriage is between one man and one woman, was approved by 52 percent of voters in 2008 after the California Supreme Court legalized gay marriage earlier that year.

The San Francisco-based appeals court ruled that the measure’s only purpose “was to lessen the status and human dignity of gays and lesbians in California,” which the U.S. Constitution doesn’t allow.

The court said it looked only at the issues of this particular case and not at whether same-sex couples may ever be denied the right to marry under the U.S. Constitution. California gay couples were allowed to wed under a May 2008 decision by the state’s highest court. That November, Proposition 8 trumped the state court’s ruling.

Struck Down

U.S. District Judge Vaughn Walker in San Francisco struck down Proposition 8 after a trial without a jury. Shortly before retiring from the bench last year he revealed that he has been in a long-term relationship with a man, prompting Proposition 8 proponents to ask the appeals court to throw out his ruling on grounds that he should have disqualified himself from the case.

The appeals court ruled unanimously that Walker didn’t have to recuse himself. Proposition 8 defenders today asked for rehearing of that issue before a larger panel of judges.

As of 2006, there were an estimated 109,000 gay couples in California, more than any other state, according to U.S. Census data compiled by the University of California, Los Angeles.

Gay marriage is legal in New York, Connecticut, Iowa, Massachusetts, New Hampshire, Vermont, Washington and the District of Columbia, according to Human Rights Campaign.

The cases are Perry v. Brown, 11-17255 and 11-16577, U.S. Court of Appeals for the Ninth Circuit (San Francisco).

--Editors: Peter Blumberg, Glenn Holdcraft

To contact the reporter on this story: Karen Gullo in San Francisco at kgullo@bloomberg.net

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net


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