The battle over gay marriage in California may be headed to the Supreme Court, after a federal appeals court announced on June 5 its refusal to reconsider its ruling striking down Proposition 8, California’s voter-approved gay-marriage ban.
The U.S. Court of Appeals for the 9th Circuit issued a brief order saying the same-sex marriage case failed to get the majority vote needed to convene a so-called “en banc” panel, which usually consists of 11 judges, in order to revisit a three-judge panel’s 2-1 decision declaring the voter-approved ban to be a violation of the civil rights of gays and lesbians in California.
The 9th Circuit does not often agree to rehear cases. Federal court rules reserve the practice for appeals that involve “a question of exceptional importance” or if the original decision appears to conflict with Supreme Court or 9th Circuit precedents.
Supporters Of The Ban Have 90 Days To Appeal To Supreme Court
As expected, supporters of the ban immediately said they would appeal to the high court. They will now have 90 days to ask the Supreme Court to overturn the appeals court’s earlier ruling. They have made clear they hope for a favorable response from the conservative-leaning court.
The top U.S. court could agree to hear the matter in the session beginning in October, putting it on track to decide the case within a year. It could also decline to review Prop 8, especially since this is strictly a California proposition, not designed to be a national mandate.
In fact, the U.S. Supreme Court would set national precedent if it decided to take the California case. Appeals courts have so far declined to rule broadly on whether marriage is a fundamental human right for same-sex couples as well as heterosexuals.
According to Politico, Ted Olson, a key lawyer for Proposition 8 challengers, said they will try to preserve the ruling for same-sex marriage rights in California by opposing the Supreme Court taking up the case. However, the former solicitor general didn’t sound averse to making a stand for same-sex marriage rights if the justices vote to take the case.
“It would be completely understandable and we would not try to avoid the full ventilation of those issues before the United States Supreme Court. We’d look forward to it,” Olson said on a conference call with reporters.
Olson said the justices would “probably take it or reject it sometime in the month of October.”
Is The Tide Turning In Favor Of Same-Sex Marriage?
While the Obama Administration could get pulled into the high-profile legal fight before November, it’s exceedingly unlikely the court would rule prior to the election. But justices are expected to start considering whether to take the case in the fall, just as the presidential election gets into high gear.
President Barack Obama last month turned gay marriage into a 2012 campaign issue, saying he believed same-sex couples should be able to marry. Republican Mitt Romney disagrees.
The vast majority of U.S. states limit marriage to opposite-sex couples, but the tide may be turning: polls show growing acceptance of same-sex nuptials, which have been legalized in eight states and the District of Columbia, thanks to votes by legislators and court decisions.
The 1st Circuit Court of Appeals in Boston last week ruled that the federal Defense of Marriage Act unconstitutionally denied benefits to same-sex couples in a state where gay marriage was legal.
This is a good day for marriage equality!
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