|In victory for marriage equality, federal appeals court won't rehear Prop. 8 case|
|Written by Laura Douglas-Brown|
|Tuesday, 05 June 2012 12:32|
The Ninth Circuit Court of Appeals declined today to grant en banc review to an earlier appeals court decision that declared Proposition 8, the ballot initiative that ended same-sex marriage in California, unconstitutional.
A three-judge panel of the Ninth Circuit Court of Appeals ruled Feb. 7 that the ban violates the Fourteenth Amendment to the United States Constitution.
The February ruling went on to note that, contrary to the arguments of Proposition 8 defenders, the measure "could not have been enacted to advance California's interests in childrearing or responsible procreation, for it had no effect on the rights of same-sex couples to raise children or on the procreative practices of other couples."
Noted the court, "Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California."
Supporters of Proposition 8 asked the Ninth Circuit for a hearing "en banc," meaning a larger 11-judge panel would hear the case.
Today, the court denied that hearing.
The decision gives Proposition 8 supporters two options, according to the American Foundation for Equal Rights, which sued to overturn the anti-gay ballot measure. They could either let the three-judge panel's decision stand, which means gay couples would be able to marry again in California, or they could appeal the case to the U.S. Supreme Court.
Prop. 8 supporters have 90 days to file the appeal, and the Supreme Court can decide not to take the case.
"Should our case be heard by the United States Supreme Court, I am confident the Justices will stand on the side of fairness and equality," said Adam Umhoefer, AFER executive director, in a press release after the court's decision was announced.
Long battle for marriage equality in Calif.
The California Supreme Court ruled in 2008 that banning same-sex couples from marriage violated the state constitution. More than 18,000 gay couples were married in California before voters repealed same-sex marriage rights in November 2008.
The California Supreme Court upheld the amendment, but AFER filed a federal lawsuit challenging the constitutionality of Proposition 8, led by high-profile attorneys Ted Olson and David Boies. The controversial case, filed as Perry vs. Schwarzenegger, is now known as Perry vs. Brown.
The gay marriage advocates won the first round, when U.S. District Chief Judge Vaughn R. Walker ruled in August 2010 that the state's ban on same-sex marriage was unconstitutional.
“Proposition 8 singles out gays and lesbians and legitimates their unequal treatment,” Walker ruled, noting that it “perpetuates the stereotype that gays and lesbians are incapable of forming long-term loving relationships and that gays and lesbians are not good parents.”
Then-Gov. Arnold Schwarzenegger and then-Attorney General Jerry Brown refused to challenge Walker's ruling, but backers of the ballot initiative — called Protect Marriage — appealed the decision to the Ninth Circuit Court of Appeals. Brown is now governor of California.
A three-judge panel of the federal appeals court — made up of Judges Stephen Reinhardt (appointed by President Carter), Randy Smith (appointed by President George W. Bush) and Michael Hawkins (appointed by President Clinton) — heard arguments in the case on Dec. 6, 2010.
The federal panel then asked the California Supreme Court to weigh in on whether the ballot measure backers had standing to defend Proposition 8.
The California high court ruled unanimously in November 2011 that the backers could defend the case. In the February ruling, the Ninth Circuit panel agreed that the sponsors of Proposition 8 were entitled to defend it.
Backers of Proposition 8 also asked that Walker's ruling be thrown out because Walker came out as gay and in a longterm relationship after he retired.
U.S. District Court Chief Judge James Ware ruled against the claim, noting that gay judges are "entitled to all the presumptions about impartiality and fairness as other judges," but the Prop 8 backers appealed that decision to the Ninth Circuit Court of Appeals as well.
In the Feb. 7 decision, the appeals court agreed that Walker's ruling should stand. The panel also directly addressed the claim that allowing same-sex couples to marry somehow harms the institution of marriage for heterosexuals.
"It is implausible to think that denying two men or two women the right to call themselves married could somehow bolster the stability of families headed by one man and one woman," the court wrote.
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