Proposition 8 supporters, going back on their earlier vow to appeal straight to the United States Supreme Court, have asked for a full Ninth Circuit Court of Appeals review.
“Disapproving of the fundamental redefinition of marriage to include same-sex couples is plainly not the same as disapproving same-sex couples as a people,” lawyers for the conservative religious coalition known as Protect Marriage told the Ninth U.S. Circuit Court of Appeals in San Francisco.
California, they said, maintains “some of the nation’s most sweeping and protective protections of gays and lesbians,” including a domestic-partners law that confers “virtually all” of the benefits of marriage. Prop. 8, its sponsors argued, showed “Californians’ solicitude for both traditional marriage and the rights of committed same-sex couples.”
Sponsors of the measure asked the court’s 25 judges Tuesday for a new hearing before a larger, 11-judge panel. Such requests are denied in most cases, but the filing keeps the case before the court for at least a few more months – delaying a future Supreme Court appeal – and maintains a stay that prevents same-sex couples from marrying.
The appeal also asks for a full court review of the Ninth Circuit’s unanimous decision to deny Proposition 8 supporters a motion to vacate Judge Vaughn Walker’s 2010 ruling striking down the gay marriage ban on grounds that he was in a gay relationship at the time which, they contend, biased the result.
The American Foundation for Equal Rights, who represents Plaintiffs fighting against Proposition 8, has called the move entirely unnecessary, noting that “We won in Federal District Court; Prop. 8 was found unconstitutional. We won again in the Ninth Circuit Court of Appeals; Prop. 8 was deemed to ‘serve no purpose’ other than to lessen the status and human dignity of gays and lesbians in California.’”
A three-member panel of the Ninth Circuit handed down a 2:1 decision earlier this month in favor of upholding District Court Judge Vaughn Walker’s 2010 ruling that Proposition 8 is unconstitutional.
The three-member panel chose to rule narrowly in this case, declining to answer the question of whether there is a constitutional right to same-sex marriage and instead ruling that, under even the most basic level of judicial review, Proposition 8′s discriminatory nature is unconstitutional.
Supporters of the gay marriage ban then had a choice whether to appeal for a full 11 judge Ninth Circuit Court review or to appeal directly to the Supreme Court. The Ninth Circuit rarely grants what is known as an en banc review.
Care2 blogger and law professor Jessica Pieklo has explained why the 9th Circuit’s opinion seems particularly tailored to appeal to the Supreme Court’s Justice Kennedy.
Photo used under the Creative Commons Attribution License, with thanks to angela n.