SAN FRANCISCO - The three-year legal showdown over California's voter-approved ban on same-sex marriage is headed to the U.S. Supreme Court.
In a brief order Tuesday, the 9th U.S. Circuit Court of Appeals refused to reconsider a ruling earlier this year that struck down Proposition 8, finding the 2008 law unconstitutional because it stripped gay and lesbian couples of the right to marry. The appeals court denied a request from Proposition 8 backers to rehear the case with a special 11-judge panel.
Same-sex couples will not be allowed to marry immediately while Proposition 8 supporters are given a chance to appeal to the Supreme Court.
As a result, gay marriage foes must turn to the Supreme Court as the only chance of reviving California's ban on same-sex nuptials. The development comes less than a week after a federal appeals court in Boston found the federal government's ban on same-sex marriage rights unconstitutional, heightening the prospect the Supreme Court may be forced to consider both state and federal gay marriage restrictions next term.
Proposition 8 supporters have vowed to press their cause to the Supreme Court. They likely would file their request for the Supreme Court to hear the case in the coming months, giving the justices the opportunity to decide whether to take it or let the 9th Circuit decision stand when they return in the fall. If the justices take up the legal battle, they would be expected to hear arguments early next year and rule by June 2013.
The 9th Circuit was widely expected to turn down the request to rehear the case. A majority of the court's 25 full-time judges must vote to rehear the case with an 11-judge panel, but the court is dominated by Clinton and Obama appointees who were considered less inclined to reconsider the ruling.
Just three judges dissented, conservatives Diarmuid O'Scannlain, Carlos Bea and Jay Bybee, saying they would rehear the case.
In a 2-1 decision, the 9th Circuit invalidated Proposition 8, saying it stripped the legal right to marry without any social or legal justification other than bias against gays and lesbians. The decision upheld former Chief Judge Vaughn Walker, who held an unprecedented trial in early 2010 and later declared the law unconstitutional.
Legal experts, however, have noted that the 9th Circuit decision was crafted as narrowly as possible, avoiding a finding that there is a constitutional right for same-sex couples to wed. Instead, the 9th Circuit ruling could be limited to California's unique circumstances - voters taking away the right to marry established in the spring of 2008, when the California Supreme Court struck down the state's previous laws outlawing same-sex marriage.
The state Supreme Court decision allowed more than 18,000 gay and lesbian couples to marry before voters approved Proposition 8 in November 2008, and those marriages remain intact. 9th Circuit Judge Stephen Reinhardt stressed that point to say the state cannot create separate, unequal classes of relationships without violating the constitution.
Reinhardt and Judge Michael Daly Hawkins, who joined in the decision, reiterated the point in Tuesday's brief order, saying "we held only that under the particular circumstances relating to California's Proposition 8, that measure was invalid.
"We did not resolve the fundamental question that both sides asked us to: whether the Constitution prohibits the states from banning same-sex marriage," the two judges said Tuesday. "That question may be decided in the near future, but if so, it should be in some other case, at some other time."
While the 9th Circuit did not specifically establish a broader fundamental right for same-sex couples to marry that might apply to other states, legal experts say the Proposition 8 case could still pose that question for the Supreme Court. The 9th Circuit relied heavily on the U.S. Supreme Court's 1996 ruling, written by Justice Anthony Kennedy, striking down a Colorado law that stripped gays and lesbians of protection against discrimination.
Kennedy is considered a crucial swing vote on the gay marriage question now propelling toward the nation's high court. The Proposition 8 case is on about the same track as the federal case decided last week out of Boston, which involved a ruling striking down the 1996 Defense of Marriage Act. The 9th Circuit is expected to hear a similar DOMA case out of San Francisco in the fall.
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The Supreme Court could avoid the larger constitutional questions in the Proposition 8 case. There is a lingering legal question over whether Proposition 8 supporters have a legal right to even press the appeal and defend the law when the state's top elected leaders, Gov. Jerry Brown and Attorney General Kamala Harris, refuse to do so. The 9th Circuit said it would abide by a California Supreme Court ruling last year allowing the measure's proponents to defend the law, but the U.S. Supreme Court could take a different view on whether they have "legal standing" in the federal courts to press the appeal on the state's behalf.
Gay rights advocates, while hoping for a broader ruling on same-sex marriage rights, have said they would raise that argument because they want to establish gay marriage rights in California.
The Proposition 8 case was filed shortly after voters approved the law on behalf of two couples seeking the right to marry, including Kristin Perry and Sandy Stier of Berkeley. A gay rights organization enlisted two of the nation's top lawyers to challenge the law, David Boies and Theodore Olson, former U.S. solicitor general during the Bush administration who has denounced same-sex marriage bans.
The Obama administration has not taken a position in the Proposition 8 case, but has refused to defend the federal ban and deemed it unconstitutional. President Barack Obama recently announced his public support for gay and lesbian couples to marry.
)2012 San Jose Mercury News (San Jose, Calif.)
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