In February, a panel of three judges from the Ninth Circuit ruled that California's ban on same-sex marriage was unconstitutional. Proponents of Proposition 8 then asked for a larger review by 11 of the 25 members of the circuit court; today's vote by a majority of the Ninth Circuit denies reconsideration of the decision.
The Ninth Circuit said that California's ban on same-sex marriages would remain in place for now. The circuit court gave 90 days for an appeal to be filed with the U.S. Supreme Court.
In response to the decision, Alliance Defense Fund senior counsel Brian Raum pointed to a dissenting opinion by Judge Diarmuid O'Scannlain, beginning with a quote from President Obama's recent announcement that he supported same-sex marriage. The president called for a "respectful conversation" as states decide the issue.
"Today our court has silenced any such respectful conversation," O'Scannlain wrote. "We should not have so roundly trumped California's democratic process without at least discussing this unparalleled decision as an en banc court."
The Supreme Court may not give the case a full review. Despite the salience of same-sex marriage in national politics, the legal issues raised by the panel could be too narrow to merit the Supreme Court's attention. Judge Stephen Reinhardt wrote a carefully tailored decision in February that limits its importance to constitutional jurisprudence.
The three judge panel said in February that the events in California were unique because same-sex couples were able to marry before the proposition changed the state constitution. Other ...