UPDATED BREAKING NEWS: Ninth Circuit deals another blow to Prop 8

Anti-marriage foes have 90 days to appeal to U.S. Supreme Court

SAN FRANCISCO – Dealing yet another blow to California’s Proposition 8, the Ninth Circuit Court of Appeals today declined a request for an en banc hearing by a larger panel of judges.

At least one of 25 judges on the appeals court agreed to the en banc hearing, which requires a majority vote. Read the full filing HERE.

Anti-marriage attorneys had filed for an en banc hearing earlier this year after a three-judge Ninth Circuit panel on Feb. 7, 2012, voted 2-1 to uphold a lower court ruling by Judge Vaughn Walker that California's Prop 8 was unconstitutional.

The three-judge panel wrote that Prop 8 indeed violates the Equal Protection Clause in the 14th Amendment of the U.S. Constitution:

“Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples. The Constitution simply does not allow for laws of this sort.”

Prop 8 supporters now have 90 days to decide whether to appeal the Perry v. Brown Proposition 8 case to the U.S. Supreme Court, where Justice Anthony Kennedy is expected to be the swing vote on a deeply divided high court. NBC is reporting that the nation's high court likely would not hear the case until next spring.

Many legal experts have accused the anti-marriage side of intentionally delaying the inevitable: the resumption of marriages by gay and lesbian couples in California. Currently the Ninth Circuit has issued a stay on marriage equality.

The American Foundation for Equal Rights (AFER) says marriage equality supporters are now waiting for one of two things:

1. Couples start getting married again in California as soon as the stay is lifted (but likely no sooner than 90 days from today);

2. The Prop 8 case is appealed to the U.S. Supreme Court.

According to AFER, the Ninth Circuit also rejected proponents’ renewed attempt to impugn the reputation of the United States District Chief Judge who struck down Proposition 8. Unable to defend Proposition 8 on its merits, Proponents claim that the now-retired Chief Judge Vaughn R. Walker was disqualified from ruling on Proposition 8 and that his historic decision should be vacated because he is gay and in a committed relationship. The Ninth Circuit unanimously rejected Proponents’ offensive argument, stating: “To do otherwise would demonstrate a lack of respect for the integrity of our federal courts.”

The reaction

American Foundation for Equal Rights co-founder Chad Griffin:

“Today’s order is yet another federal court victory for loving, committed gay and lesbian couples in California and around the nation. The final chapter of the Proposition 8 case has now begun. Should the United States Supreme Court decide to review the Ninth Circuit’s decision in our case, I am confident that the Justices will stand on the side of fairness and equality.”

Human Rights Campaign President Joe Solmonese:

“Once again, a federal court has affirmed that the cherished guarantees of our Constitution are there to protect all Americans – including lesbian, gay, bisexual and transgender people. For over three years, the plaintiffs, the American Foundation for Equal Rights, and attorneys Ted Olson and David Boies have shown tremendous fortitude and perseverance in their fight for marriage equality. With today’s announcement, we are one step closer to ensuring that gay and lesbian Californians – and, one day, our entire community nationwide – are able to join the institution of marriage and have their love and commitment respected equally.

“Today’s announcement is another significant step on a path that we all know leads to equality. While the U.S. Supreme Court may ultimately decide the outcome of this case, we must all continue to walk that path – in this case and other courtrooms, in legislatures, at ballot boxes and at kitchen table – until all LGBT people are fully and equally part of the American community.”

Stuart Gaffney, Marriage Equality USA’s media director:

“The momentum for the freedom to marry seems unstoppable. Three weeks ago, the President of the United States announced his support for marriage equality. Last week, the 1st Circuit Federal Court of Appeals held that the so-called Defense of Marriage Act is unconstitutional. And today, the 9th Circuit Federal Court of Appeals upheld its earlier decision striking down Proposition 8. Nationwide polls have shown majority support for the freedom to marry for the last two years, and Californians now favor marriage equality by a 59 – 34 percent margin, according to the latest polling.”

John Lewis, Marriage Equality USA’s legal director"

“Earlier this year, a 3-judge panel of the Ninth Circuit held that Proposition 8’s targeting lesbian and gay people and taking away their freedom to marry violated the equality and fairness guarantees of the United States Constitution. Today, a majority of the Court agreed, by declining to revisit the ruling. If the United States Supreme Court also declines to review the case, loving, committed lesbian and gay couples could be able to marry again in California later this year or early next year.”

Thom Watson and Jeff Tabaco of Daly City, Calif., who have been waiting to marry since Prop 8 was passed almost 4 years ago:

"This month Jeff and I begin our 10th year together as a couple," Watson said. "When Judge Vaughn Walker heard closing arguments two years ago this month, he quipped, 'June is, after all, the month for weddings,'" Tabaco said. "It would be wonderful if this June marked the final decision in the case, and Thom and I could celebrate our 10th anniversary by getting legally married,” he continued. “A few days ago First Lady Michelle Obama stated: 'In a country where we teach our children that everyone is equal under the law, discriminating against same-sex couples just isn't right.' We applaud our courts’ standing up for what’s fair and right and urge them to continue to do so,” Watson said.

Equality California board president Clarissa Filgioun:

"Americans of all backgrounds, including the President of the United States, are coming to understand that same-sex couples want the freedom to marry for the same reason as other loving, committed couples — to make a lifetime commitment in front of friends and family and have the security of marriage that allows couples and families to care for one another. Through our movement's work in the court of public opinion and our courts of law, we are, with each passing milestone, one step closer to putting and end to Proposition 8 for good.”

Evan Wolfson, founder and President of Freedom to Marry:

“Today’s decision by the Ninth Circuit to deny a rehearing of Perry vs. Brown brings committed same-sex couples in California one step closer to being able to marry. It's now been three-and-a-half years since the freedom to marry was stripped from from loving and committed same-sex couples. It is long past time for this 'gay exception' to marriage in California to come to an end. Freedom to Marry calls on all Americans to join us in continuing to make as strong a case in the court of public opinion as legal advocates are making in the court of law."

California state Assemblymember Toni Atkins:

"Today, yet another court has affirmed the fundamental justice of marriage equality for same sex couples when it denied the supporters of Proposition 8 a second bite at the apple in the federal Ninth Circuit Court of Appeals. This decision is in line with the majority of court decisions affecting California which have recognized that second class status for gay and lesbian couples is unacceptable under our system of constitutional fairness.

"Marriage equality is supported by a majority of Americans and by our nation’s highest official, President Barak Obama. I am confident that even if the opponents of fairness continue their attempt to impose their narrow view of family on the rest of the nation by appealing to the U.S. Supreme Court, that they will fail to persuade the justices that discrimination should be the law of the land."

Kate Kendell, executive director of National Center for Lesbian Rights:

Today, the Ninth Circuit Court of Appeals denied review by a larger panel of judges of that Court’s February 7, 2012 decision striking down Proposition 8 as unconstitutional. Proposition 8 is the 2008 measure that stripped same-sex couples of the right to marry in California. The Ninth Circuit’s February decision held that Proposition 8 violates the Fourteenth Amendment to the Constitution because it “serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.”

Ken Williams is Editor in Chief of SDGLN. He can be reached at ken@sdgln.com, @KenSanDiego on Twitter, or by calling toll-free to (877) 727-5446, ext. 713.

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