California Gay-Marriage Case On Path To Supreme Court

The Ninth Circuit U.S. Court of Appeals Tuesday declined to rehear arguments over California's ban on gay marriage, which the court invalidated in February. The decision sends the case on a trajectory to the U.S. Supreme Court.

It is common in the debate over gay marriage for proponents to argue that consenting adults should be free to do as they please.  Both social liberals and libertarians insist that, since there are no victims, government has no right to prohibit gay marriage.

The Ninth Circuit U.S. Court of Appeals Tuesday declined to rehear arguments over California's ban on gay marriage, which the court invalidated in February. The decision sends the case on a trajectory to the U.S. Supreme Court.

The decision came after proponents of Proposition 8—the 2008 California voter initiative banning gay marriage—asked that the February decision by a three-judge panel be reviewed by a larger panel of 11 judges.

To be heard by the larger panel, a majority of the court's 25 active judges would have to vote to rehear the case. The motion failed to get a majority, the decision said.

Three Ninth Circuit judges dissented from the ruling Tuesday, citing a remark by President Barack Obama in his recent support of gay marriage that he would like to see the discussion over gay marriage continue "in a respectful way."

"Our court has silenced any such respectful conversation," Judge Diarmuid O'Scannlain wrote for the dissenters.

Proposition 8 amended the state constitution to nullify a state Supreme Court ruling that the California constitution required recognition of same-sex marriages.

The Ninth Circuit struck down Proposition 8 in February, finding it violated the U.S. Constitution by withdrawing from gays and lesbians a right that they previously enjoyed.

In a conference call, David Boies, a lawyer for the pro-gay-marriage plaintiffs opposing Proposition 8, said the Tuesday decision "affirms what we've said from the beginning, that marriage is a fundamental right."

Ted Olson, a lawyer for the Proposition 8 opponents, said the Supreme Court is likely to decide in October whether to hear the case, and if it does, it will probably issue a decision by June of 2013.

Andy Pugno, a lawyer for the group supporting Proposition 8, said the ruling "essentially clears the way to where we ultimately knew this was going, which is the U.S. Supreme Court.

The case heads to the Supreme Court at a time when public opinion on gay marriage is shifting. An analysis of polls by the Pew Forum on Religion and Public Life shows that in 2004, 60% of Americans opposed letting gay and lesbian couples marry, and 31% supported gay marriage. This year, the poll shows, 47% of Americans support gay marriage, and 43% oppose it.

Tuesday's decision comes after a federal appeals court in Boston last week ruled the 1996 federal Defense of Marriage Act unconstitutional, likely sending that case to the Supreme Court as well.