Bloomberg News

Gay-Marriage Foes Lose Bid for Review of Order on Ban

June 05, 2012

Proposition 8

Opponents of Proposition 8, California's anti-gay marriage bill, celebrate outside of the Ninth U.S. Circuit Court of Appeals on February 7, 2012 in San Francisco. Photographer: Justin Sullivan/Getty Images

A judge’s ruling striking down California’s Proposition 8 ban on gay marriage as unconstitutional will stand after a federal appeals court in San Francisco refused to reconsider the decision.

Proponents of Proposition 8, approved by 52 percent of California voters in 2008, will ask the U.S. Supreme Court to review the case. Lawyers for the groups said lower-court rulings reversing the measure were an attack on the democratic process.

“The Protectmarriage.com legal team looks forward to standing before the U.S. Supreme Court on behalf of people’s right to preserve the fundamental building block of civilization,” Brian Raum, a lawyer for Proposition 8 proponents, said in an e-mail. “The democratic process and the most important human institution -- marriage -- shouldn’t be overthrown based on the demands of Hollywood activists.”

A majority of the 25 active judges at the U.S. Court of Appeals in San Francisco voted against rehearing the case. In February, a three-judge panel of the court voted 2-1 to uphold a federal judge’s 2010 ruling that Proposition 8 violates equal protection rights of gay and lesbian couples. Three judges dissented from the majority’s decision today.

“We have overruled the will of 7 million California Proposition 8 voters,” Circuit Judge Diarmuid O’Scannlain said in a dissenting opinion on behalf of himself and the two other opposing judges. “We should not have so roundly trumped California’s democratic process.”

Obama’s Support

O’Scannlain, noting that President Barack Obama announced his support of same-sex marriage a few weeks ago, said the president also commented that U.S. states are free to decide whether to allow gays to marry and the debate over gay marriage should “continue in a respectful way.”

“Today the court has silenced any such respectful conversation,” O’Scannlain said.

Justice Stephen Reinhardt, agreeing with the majority to deny review of the case, said the court held in February that Proposition 8 was invalid and didn’t resolve the fundamental question of whether the U.S. Constitution prohibits 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,” Reinhardt said in today’s decision.

The three-judge panel in February 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.

Supreme Court

The Supreme Court may have several chances over the next year to take up the issue of same-sex marriage in some form.

The U.S. Court of Appeals in Boston ruled May 31 that the heart of the U.S. Defense of Marriage Act, which defines marriage as only a heterosexual union, is unconstitutional. The panel was the first appellate court to have declared any part of the federal law unconstitutional, said Kenji Yoshino, a professor of constitutional law at New York University School of Law in Manhattan.

After the San Francisco appellate panel said Proposition 8 was correctly struck down, backers of the measure sought review by a larger group of judges. The law, which remains in effect by court order, will continue to be law in California until the Supreme Court rules, the San Francisco appeals court said today.

‘Binding Precedent’

Charles Cooper, an attorney for Proposition 8 defenders, said in court filings that the three-judge panel “erred in breaking with the uniform and binding precedent upholding the constitutionality of laws adopting the traditional definition of marriage.”

Lawyers for gay couples that sued to overturn Proposition 8 opposed a rehearing in the appeals court.

“The final chapter of the Proposition 8 case has now begun,” said Chad Griffin, co-founder of the American Foundation of Equal Rights, which sponsored the lawsuit. “Should the U.S. Supreme Court decide to review the Ninth Circuit’s decision in our case, I cam confident that the justices will stand on the side of fairness and equality.”

Proposition 8, approved after the California Supreme Court legalized gay marriage in 2008, amended California’s constitution to define marriage as being between one man and one woman.

About 18,000 gay couples married in California before Proposition 8 was passed. 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.

Massachusetts, Connecticut, Iowa, Vermont, New Hampshire, New York and Washington, D.C., issue marriage licenses to same- sex couples, while Maryland and Washington state have approved doing so with laws that have yet to take effect.

The case is Perry v. Brown, 10-16696, U.S. Court of Appeals for the Ninth Circuit (San Francisco).

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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