SAN FRANCISCO — The backers of California's same-sex marriage ban petitioned a federal appeals court Tuesday to review a split decision by three of its judges that struck down Proposition 8, opting for now to avoid taking their chances before the U.S. Supreme Court.
Lawyers for the religious and legal groups behind the ban beat a midnight deadline to ask the 9th U.S. Circuit Court of Appeals to rehear the 2-1 decision that declared Prop. 8 to be a violation of the civil rights of gay and lesbian Californians.
If they had not sought reconsideration, the three judges could have ordered the ruling to take effect in another seven days, clearing the way for same-sex marriages to resume in the state.
Instead, same-sex marriages will remain on hold at least until the 9th Circuit decides to accept or reject the rehearing petition. The court does not face a deadline for doing so.
"After careful consideration, we determined that asking for reconsideration by the full 9th Circuit is in the best interests of defending Prop. 8," said Andy Pugno, general counsel for the Protect Marriage coalition. "This gives the entire 9th Circuit a chance to correct this anomalous decision by just two judges overturning the vote of seven million Californians."
Legal experts said supporters of the ban could be exhausting all their options before trying to take the case to the Supreme Court.
"It's another procedural opportunity they have, so why give up another bite at the apple?" Stanford University law professor Jane Schacter said about the decision to appeal to the 9th Circuit.
If a majority of the 9th Circuit's 25 actively serving judges agree to reconsider the case, it would be assigned to a panel that includes the chief judge and 10 randomly selected judges. Schacter, however, said the 9th Circuit does not often reverse the decisions of member judges.
Schacter suggested Prop. 8 backers might believe a ruling by a bigger appeals court panel could yield a decision more likely to pique the interest of the Supreme Court. The two judges who rejected Prop. 8 two weeks ago focused their decision exclusively on California's ban, even though the court has jurisdiction in nine western states.
Analysts said that made it less likely the Supreme Court would take the case on appeal.
"If the en banc decision was broad, it might be more likely to draw attention of the Supreme Court because it would be a decision with national reverberations," Schacter said.
In addition, backers of the ban might want to delay Supreme Court review until after the November presidential election, which could work in their favor if a Republican is elected president.
Prop. 8 amended the California Constitution to outlaw same-sex marriages five months after the state Supreme Court threw out a pair of statutes that limited marriage to a man and woman. The proposition was approved by voters in November 2008 with 52 percent of the vote.
"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 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."
The 9th Circuit panel said in its Feb. 7 ruling that the amendment violated the U.S. Constitution's promise of equal protection because it singled out a minority group for disparate treatment for no compelling reason.
The two judges in the majority concluded that the law had no purpose other than to deny gay couples marriage, since California already grants them all the rights and benefits of marriage if they register as domestic partners.
The lone dissenting judge insisted that the ban could have served a legitimate purpose in the minds of its supporters: namely, helping to ensure that children are raised by married, opposite-sex parents.
All three judges agreed there was no evidence that former Chief U.S. Judge Vaughn Walker, who struck down Prop. 8 after conducting a 13-day trial, should have disclosed that he was gay and in a long-term relationship with another man before he presided over the proceedings.
In the petition filed Tuesday, lawyers for the ban's supporters said the 9th Circuit panel overlooked a Supreme Court precedent in a 1972 same-sex marriage case that should have been binding on their deliberations and that it misapplied the high court's 1996 decision overturning a Colorado measure that outlawed discrimination protections for gay people.
They also argued that the panel wrongly concluded that Walker had no obligation to reveal his involvement in a same-sex relationship.
"Disapproving of the redefinition of marriage to include same-sex couples is plainly not the same as disapproving same-sex couples as a people," the petition stated. "Do President Obama and a host of other prominent champions of equal rights for gays and lesbians support the traditional definition of marriage solely to disapprove of gays and lesbians as a class and to dishonor same-sex couples as a people?"
Six states allow gay couples to wed – Connecticut, New Hampshire, Iowa, Massachusetts, New York and Vermont – as well as the District of Columbia. The governor of Washington signed a bill this month that would make that state the seventh. But California, as the nation's most populous state and home to more than 98,000 same-sex couples, would be the gay rights movement's biggest prize of them all.