Calling the case one of “exceptional importance,” the sponsors of California’s Proposition 8 asked a federal appeals court in San Francisco today to uphold the ban on same-sex marriage.
The measure’s sponsors asked the 9th U.S. Circuit Court of Appeals to have an 11-judge panel reconsider and overturn a ruling in which a smaller panel struck down Proposition 8 on Feb. 7.
In that decision, a three-judge panel said by a 2-1 vote the 2008 voter initiative violates the U.S. Constitution’s 14th Amendment guarantee of equal treatment without a legitimate reason.
That decision has been put on hold during the appeals process and Proposition 8 remains in effect.
The measure’s sponsors argued in a brief filed today that state voters had a rational basis for approving it–an intent to ensure that procreation by male-female couples would be channeled into “enduring, stable unions” and responsible child-rearing.
“Californians draw the line at redefining marriage to include same-sex couples not because they disapprove of gays and lesbians as a class, but because they believe that the traditional definition of marriage continues to meaningfully serve society’s legitimate interests,” the sponsors’ lawyers wrote.
The initiative’s sponsors had previously vowed to appeal the Feb. 7 ruling, but had not said until today whether they would seek review by an expanded 11-judge panel or go directly to the Supreme Court.
Andrew Pugno, a lawyer for the sponsors and their committee, Protect Marriage, said, “After careful consideration, we determined that asking for reconsideration by the full 9th Circuit is in the best interests of defending Proposition 8.
“On behalf of the seven million Californians who voted to restore marriage as between a man and a woman, we think it’s important that the full 9th Circuit has an opportunity to consider our appeal and maintain uniformity of the court’s legal precedents,” Pugno said.
Theodore Boutrous, a lawyer for two same-sex couples who challenged the constitutionality of Proposition 8, said they will oppose the bid for reconsideration.
“We are ready to defend our victory whatever path this case takes,” Boutrous said.
“Because our plaintiffs have the right to get married…we will seek to bring that fundamental right to reality at the earliest possible time for the tens of thousands of Californians who are being denied basic justice, due process and equality,” the attorney said.
Under the circuit court’s rules, the plaintiffs will have an opportunity to file their opposition to the petition for reconsideration. There is no deadline for such a filing.
The petition will then be circulated among the court’s 25 active judges and if any judge calls for a vote, the group will then vote on whether to rehear the case.
If a majority votes for reconsideration, the appeal will then be heard by an 11-judge panel, also known as an en banc panel, made up of Chief Circuit Judge Alex Kozinski and 10 other randomly selected judges.
Court spokesman David Madden said there is no deadline for the court to decide whether to grant a rehearing. He said the court receives more than 1,000 petitions for en banc review each year, but grants only about 20.
Whether or not the circuit court grants a rehearing, the next step after that would be a possible appeal to the U.S. Supreme Court.
The smaller 9th Circuit panel upheld a 2010 ruling by now-retired U.S. District Judge Vaughn Walker that struck down Proposition 8, although the appeals court ruled on narrower grounds.
That panel’s decision was formulated in a way that applies only to California, which allowed gay marriage for several months in 2008 until voters approved Proposition 8 in November of that year.
The court majority said Proposition 8 treated gays and lesbians unfairly by taking away a previously granted right to marriage without any reasonable justification.
Circuit Judge Stephen Reinhardt wrote, “By using their initiative power to target a minority group and withdraw a right that it possessed, without a legitimate reason for doing so, the people of California violated the Equal Protection Clause.”
Julia Cheever, Bay City News