The 9th U.S. Circuit Court of Appeals voted not to hear arguments a second time on California’s Proposition 8 meaning it will now head to the U.S. Supreme Court where they can make a decision whether or not to hear the case.
In February, a three-judge panel of the 9th U.S. Circuit Court ruled to 2-1 that Prop. 8’s ban on same-sex marriage could not stand. Prior to November 4, 2008, the California Constitution guaranteed the right to marry opposite-sex couples and same sex couples alike. Circuit Judge Stephen Ray Reinhardt wrote the opinion:
“On that day the People of California adopted Proposition 8, which amended the state constitution to eliminate the right of same-sex couples to marry. We consider whether that amendment violates the 14th Amendment to the United States Constitution. We conclude that it does.”
(Circuit Judge N. Randy Smith was the lone dissenting vote. To read the original ruling click here. )
Supporters of Prop. 8 appealed the ruling and asked for a second hearing before a larger panel of 11 judges, referred to as en banc.
Officials from the 9th said fewer than two dozen cases a year are sent to the larger panel and Prop. 8 will not be an exception.
Circuit Judge Diarmiud Fionntain O’Scannlain (joined by Circuit Judges Jay S. Bybee, and Carlos T. Bea) issued their dissenting opinion on the denial of rehearing the case official known as Perry v. Brown. In their statement they emphasized overruling “the will of seven million Proposition 8 voters” after a “gross misapplication of Romer v. Evans.”
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“We should not have so roundly trumped California’s democratic process without at least discussing this unparalleled decision as an en banc court,” O’Scannlain’s statement read.
Their dissent also focused on the “media firestorm” created by President Barack Obama’s support of same sex marriage. They emphasized the president’s comments that the Constitution left the matter to the states and that the conversation should be continued in a respectful way.
“Today our court has silenced any such respectful conversation,” O’Scannlain’s statement read.
Circuit Judges Reinhardt and Michael Daly Hawkins issued their own statement in support of denying the en banc hearing.
“We are puzzled by our dissenting colleagues’ unusual reliance on the President’s views regarding the Constitution, especially as the President did not discuss the narrow issue that we decided in our opinion,” the Reinhardt/Hawkins statement read.
Reinhardt and Hawkins said their February 21 decision did not resolve the fundamental question of whether or not 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,” the Reinhardt/Hawkins statement read.
Proponents of Prop. 8 now have 90 days to file a petition for certiorari to the Supreme Court, seeking review of the decision striking down the proposition.
In 2008 California voters passed Proposition 8 by 52.24 percent to 47.76 percent.
Four years later those numbers track nationally as well. A May Gallup poll indicated 50 percent of Americans believe same-sex marriages should be recognized by law as valid with the same rights as traditional marriages. However, that number is down from 53 percent the year before.
View the Gallup poll by clicking here.