Prop 8 To The Supreme Court? California Gay Marriage Ban Backers Look Ahead

SAN FRANCISCO — Gay marriage took another step Tuesday on its march to the U.S. Supreme Court, when a federal appeals court that struck down California's ban on same-sex unions refused to reconsider the ruling.

Now that the case has run its course in the 9th U.S. Circuit Court of Appeals, the measure's sponsors "absolutely" plan to take the case to the high court, said Brian Raum, a lawyer with the Alliance Defense Fund, a Christian legal defense group.

Backers of the ban, known as Proposition 8, now have 90 days to petition the Supreme Court to review the finding that the ban violates the civil rights of gay men and lesbians in California.

If at least four justices agree to accept the case, oral arguments would likely be held next spring.

The developments came after the 9th U.S. Circuit declined to review a February ruling by two of its member judges who found the state's voter-approved same-sex marriage ban was unconstitutional, in part because it rescinded a right that gay and lesbian Californians already had won.

Same sex unions briefly were legal in the state before 52 percent of voters approved the ban in November 2008.

Gay marriage supporters welcomed the latest news in the long-running legal battle. If the Supreme Court refuses to take up the case and lets the appellate ruling stand, same-sex marriages could be legal again in California by the end of the year.

"The final chapter of the Proposition 8 case has now begun," said American Foundation for Equal Rights co-founder Chad Griffin, whose group is funding the effort to overturn the ballot measure. "Should the United States Supreme Court decide to review the 9th Circuit's decision in our case, I am confident that the justices will stand on the side of fairness and equality."

A majority of the 9th Circuit's 26 actively serving judges voted against giving the case a second look while leaving Proposition 8 in effect until a Supreme Court appeal is resolved.

Judge Diarmuid O'Scannlain issued a terse dissent, arguing that the full 9th Circuit should have reexamined its panel's 2-1 decision because in his view it was based on a "gross misapplication" of Supreme Court precedent and "overruled the will of seven million California voters." Judges Carlos Bea and Jay Bybee joined him in that opinion.

The 9th Circuit does not often agree to rehear cases, a procedure known as en banc review. Federal court rules reserve the practice for appeals that involve "a question of exceptional importance" or if the original decision appears to conflict with Supreme Court or 9th Circuit precedents.

Several other high-profile same-sex cases also are moving toward the high court. A three-judge panel of the Boston-based 1st U.S. Circuit Court of Appeals declared last week that the federal law that prohibits recognition of same-sex couples unconstitutionally denies Social Security and other federal spousal benefits to married gay couples.

The Massachusetts and California cases could reach justices at the same time, which "probably increases the likelihood the court will take the (Proposition 8) case," said David Boies, a lawyer representing the two unmarried couples who first sued to overturn the ban three years ago.

At the same time, because the 9th Circuit limited its decision to California instead of ruling that gay marriage bans are inherently unconstitutional, the Supreme Court might be inclined to let it stand, he said.

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• Jan. 3, 2000

  California begins registering domestic partners, allowing same-sex couples: hospital visitation rights and health insurance coverage for the dependents of government employees covered by CalPERS, the state retirement system.

• March 7, 2000

  Proposition 22, a ballot measure which declares that marriage should remain between opposite sex couples, is approved by 61 percent of California voters.

• Sept. 19, 2003

  California Governor Gray Davis signs a bill that gives state-registered domestic partners additional rights that, although stop short of recognizing gay marriage, allow surviving partners the right to collect government benefits from his or her partner and obtain custody is a partnership is ultimately dissolved.

• Feb. 12, 2004

  Dozens of same-sex couples are married when San Francisco Mayor Gavin Newsom instructs city officials to issue marriage licenses. The excitement is short-lived, however, and on March 11, the California Supreme Court orders the city to stop marrying gay couples after nearly 4,000 have received licenses.

• Aug. 12, 2004

  California's Supreme Court rules that Newsom overstepped his authority by allowing San Francisco to issue marriage licenses to same-sex couples, and the court also declares the nearly 4,000 couples "void from their inception and a legal nullity."

• Dec. 21, 2004

  A San Francisco judge hears arguments on same-sex marriages, which argue that the current law defining marriage as being "between a man and a woman" violates the state Constitution by denying gay couples the "fundamental right" to marry a person of their choice.

• Sept. 29, 2005

  Gov. Arnold Schwarzenegger vetoes a same-sex marriage bill after it passed the Senate and Assembly, arguing that it would wrongly reverse Proposition 22, which declares that marriage is only between a man and a woman.

• Sept. 19, 2007

  San Diego Mayor Jerry Sanders reverses his public opposition to same-sex marriage, saying he cannot tell his daughter Lisa, who is a lesbian, that her relationship with a partner is not as important as that of a straight couple.

• Oct. 12, 2007

  Schwarzenegger vetoes a bill approved by state lawmakers that would legalize gay marriage, saying the courts need to rule on the legality of Proposition 22, the gay marriage ban passed by voters.

• May 15, 2008

  The California Supreme Court rules that the state Constitution protects a fundamental "right to marry" that should also extend to same-sex couples, and that existing bans are unconstitutional.

• June 2, 2008

  The California Marriage Protection Act is submitted with over one million signatures. It appears as Proposition 8 on the November ballot.

• Nov. 8, 2008

  Despite an onslaught of opposition from LGBT activists and allies, Proposition 8 passes with 52 percent of the vote.

• Aug. 4, 2010

  U.S. District Court Judge Vaughn Walker declares,"Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite sex couples are superior to same sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the Court concludes that Proposition 8 is unconstitutional."