Updated: 8 p.m. ET.
The full Ninth Circuit U.S. Court of Appeals refused Tuesday (June 5) to review a panel’s decision that Proposition 8 is unconstitutional.
With last week’s First Circuit decision striking a core section of the Defense of Marriage Act (DOMA) also heading to the nation’s highest court, it is now likely the Supreme Court will have two major same-sex marriage cases on their docket in October.
The Ninth Circuit case, if accepted, would ask whether states can ban same-sex couples from obtaining a marriage license; the First Circuit case, if accepted, would ask whether the federal government can refuse to recognize marriages licensed by states to same-sex couples.
The three-paragraph order stated that the request for a full court review “failed to receive a majority of the votes” of active judges. It also noted that the mandate would be stayed for 90 days to enable proponents of Proposition 8 to file an appeal to the U.S. Supreme Court.
Accompanying the order was a dissent from three circuit court judges. It said the refusal for appeal “has silenced” a “respectful conversation” about the same-sex marriage issue. It called the 2 to 1 panel decision striking Proposition 8 a “gross misapplication” of the U.S. Supreme Court’s decision in Romer v. Evans. In that case, the Supreme Court said states could not pass laws that excluded gays from protection just because gays are an unpopular group.
The panel decision, said the dissenters, “have now declared that animus must have been the only conceivable motivation for a sovereign state to have remained committed to a definition of marriage that has existed for millennia.”
Proponents of Proposition 8 filed the Ninth Circuit full court appeal, asking it to overturn a decision by a three-judge panel of the circuit last February. That panel decision found that California’s ban on same-sex marriage violates the federal constitution by stripping from same-sex couples a right they had (to marry) prior to passage of Proposition 8. In order for a limited en banc (full) panel of the court to have heard the appeal (11 judges), at least 14 of the circuit’s 26 active judges would have had to say another review is warranted.
The case is Perry v. Brown, led by famed conservative attorney Ted Olson and preeminent liberal attorney David Boies and organized and funded by the American Foundation for Equal Rights.
In that case, two same-sex couples sued after being denied marriage licenses once the voter-approved constitutional ban on same-sex marriage went into effect.
U.S. District Court Judge Vaughn Walker ruled, in August 2010, that banning same-sex couples from obtaining marriage licenses violates the federal constitution’s guarantees of equal protection and due process. He agreed to delay enforcement of the decision, pending an appeal by Yes on 8 attorneys to the Ninth Circuit.
In February 2012, a three-judge panel of the Ninth Circuit, in a 2 to 1 vote, upheld Walker’s decision. But in doing so, the panel explained that Proposition 8 improperly removed from a group of citizens (gays) a right they already enjoyed (marriage).
The California Supreme Court had ruled, in May 2008, that the state constitution required that same-sex couples be able to obtain marriage licenses the same as straight couples. But in November of that year, voters approved Proposition 8, amending the state constitution to explicitly ban the recognition of same-sex marriage.
While attorneys and activists uniformly called the February 7 panel decision a major victory, the decision did stop short of saying that same-sex partners, like straight partners, have a “fundamental right to marry.” Instead, it said Proposition 8 deprived same-sex partners only of the “right to use the designation of ‘marriage.’”
If it had ruled same-sex couples had a fundamental right to marry, said Lambda Legal Defense’s legal director Jon Davidson, “the marriage laws of 44 states would have been cast into doubt….” And by rendering such a relatively narrow ruling, said Davidson and others, the panel reduced the likelihood the U.S. Supreme Court would take the case.
“The fundamental right to marry, as protected by the US Constitution,” said Williams Institute legal scholar Jenny Pizer, “has to have the same contours throughout the country. So a decision concluding that same-sex couples have the same fundamental right as different-sex couples would call into question all the marriage restrictions states currently impose.”