Supporters of California's same-sex marriage ban indicated Tuesday that they plan to ask a federal appeals court -- not the U.S. Supreme Court -- to reverse a ruling that voter-approved Prop 8 is unconstitutional.
Sponsors of the 2008 ballot measure plan to appeal to the 9th U.S. Circuit Court of Appeals. A three-judge panel from the 9th Circuit issued the 2-1 decision Feb. 7 that Prop 8 violated the civil rights of same-sex couples.
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Prop 8 backers plan to appeal to a larger panel from the 9th Circuit. They faced a midnight deadline for petitioning the court to reconsider.
"Generally speaking, we think the 9th Circuit as a whole deserves the chance to basically fix this because the decision is such an outlier, it's really not representative of what the 9th Circuit's thinking on this issue has been,'' said Protect Marriage legal counsel Andy Pugno. "There is liberal and then there is insanity, and there is just no way the entire 9th Circuit would sign off on a decision like this."
The move means same-sex marriages will likely remain on hold until that panel accepts or rejects the group's petition. The issue would be assigned to a panel of 11 randomly selected judges if the 9th Circuit's actively serving judges agree that the case should be reconsidered.
There is no deadline for a decision.
The court made clear in the Feb. 7 ruling that proponents of the ballot measure have the right to appeal decisions regarding the issue in court.
"Today's petition shows how far the anti-marriage proponents of Proposition 8 will go to ensure that gay and lesbian Americans remain second-class citizens,'' said Chad Griffin, president of the American Foundation for Equal Rights, which sued to overturn the California ban. "Separate is never equal, and I am confident that one day, very soon, every American will be able to enjoy the fundamental freedom to marry.''
Two judges stated in the Feb. 7 ruling, "Although the Constitution permits communities to enact most laws they believe to be desireable, it requires that there be at least a legitimate reason for the passage of a law that treats different classes of people differently. There was no such reason that Proposition 8 could have been enacted."
The dissenting judge insisted that the ban could help ensure that children are raised by married, opposite-sex parents. Judge N. Randy Smith wrote in his dissent that he was "not convinced that Proposition 8 is not rationally related to a legitimate governmental interest" in restricting the definition of marriage to a union bewteen a man and woman.
It was U.S. District Judge Vaughn Walker's ruling in August 2010 that prompted Prop 8 supporters to appeal the case to the 9th Circuit panel. Walker ruled that Prop 8 "both unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation.''