The U.S. 9th Circuit Court of Appeals declined today to convene an 11-judge panel to rehear last February's 2-1 decision that California's Proposition 8 against same-sex marriage violates federal constitutional guarantees. Today's decision sets up a showdown over gay marriage at the U.S. Supreme Court, possibly by next year.
There was divided opinion at the 9th Circuit over whether to reconsider the February ruling. From legal affairs reporter Maura Dolan in the LA Times:
A majority of the circuit’s active judges voted against such reconsideration.
On Tuesday, Judge Diarmuid O’Scannlain, joined by two other jurists, wrote in a dissent that President Obama, in declaring his personal support for same-sex marriage, said it was a matter for states to decide.
“We have overruled the will of seven million California Proposition 8 voters,” O’Scannlain wrote. “We should not have so roundly trumped California’s democratic process without at least discussing this unparalleled decision as an en banc court.”
Judges Stephen Reinhardt and Michael Daly Hawkins, who voted in February to overturn Proposition 8, responded in a concurring opinion that their ruling was narrow.
“We held only that under the particular circumstances relating to California’s Proposition 8, that measure was invalid. In line with the rules governing judicial resolution of constitutional issues, we did not resolve the fundamental question that both sides asked us to: whether the Constitution prohibits the 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.”
California voters passed Proposition 8 in November 2008, reinstating a ban on same-sex marriage six months after the state Supreme Court voided such a ban on state constitutional grounds.
Here's a statement this afternoon from Los Angeles Mayor Antonio Villaraigosa:
Today we have taken another momentous step on the path to full equality and dignity for all Californians and all Americans. Today, the US Court of Appeals for the 9th Circuit refused to reconsider its landmark ruling that Proposition 8 is unconstitutional. In its original ruling striking down Proposition 8, the Court was clear and compelling. Proposition 8 “serves no purpose…other than to lessen the status and human dignity of gays and lesbians in California.” With its decision, the court has once again affirmed a basic American truth: bigotry and bias have no place in our laws.
Today we celebrate. We celebrate a victory for love, a victory for the thousands of California couples who want to do nothing more than to seal their lifelong commitment to each other through the bonds of marriage. Tomorrow we prepare for the hoped-for last chapter in our decades long fight for marriage equality: a ruling by the United States Supreme Court. Between now and then, we will continue to make our case: love doesn’t care if you’re gay or straight, love doesn’t discriminate.