Supporters of Proposition 8, California’s ban on gay marriage, are asking the Ninth Circuit to review the decision by a three-judge panel that declared the measure unconstitutional.
In an appeal on Tuesday, ProtectMarriage, the sponsors of Proposition 8, asked the Ninth Circuit to grant them an en banc rehearing of the decision to overturn the law. Earlier this month, a three-judge panel of the Ninth Circuit ruled in a 2-1 decision that Prop 8 violates the Equal Protection Clause of the 14th Amendment.
“All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation of ‘marriage,’ which symbolizes state legitimization and societal recognition of their committed relationships,” wrote Judge Stephen Reinhardt, in the court’s opinion. “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.’”
The charge that the only purpose of Prop 8 is to lessen the status of gays and lesbians, the appeal argues, “is false on its face, and leveling it against the People of California is especially unfair.”
“Disapproving of the fundamental redefinition of marriage to include same-sex couples is plainly not the same as disapproving same-sex couples as a people,” the appeal argues. “Do President Obama and a host of other prominent champions of equal rights for gays and lesbians support the traditional definition of marriage solely to disapprove of gays and lesbians as a class and to dishonor same-sex couples as a people?”
“That the traditional definition of marriage confers a symbolic benefit on committed opposite-sex couples does not ‘dishonor’ gays and lesbians as a class or express official ‘disapproval of them and their relationships,’” ProtectMarriage said. “It is simply not true that when the government provides special recognition to one class of individuals, it demeans others.”
If the en banc review is granted, 11 of the Ninth Circuit’s judges will rehear the case. A majority of the court’s mostly Democratic judges must vote to approve the rehearing.
Prop 8 supporters had the choice to petition for an en banc ruling, or to take their case straight to the Supreme Court. Andy Pugno, ProtectMarriage’s attorney, told the Los Angeles Times that he wanted to give the Ninth Circuit “a chance to correct this anomalous decision by just two judges overturning the vote of seven million Californians.”
An en banc review could take six months to a year.