Supporters of California's Proposition 8 that banned same-sex marriage have petitioned the full 9th Circuit Court of Appeals to review a split decision handed down by three of its judges two weeks ago. The controversial decision upheld a district court's ruling overturning the ban, potentially paving the way for same-sex marriages in the Golden State.
Known as an "en banc" request, it was made on Tuesday by lawyers for the religious and legal groups that are fighting to keep the voter-approved proposition on the books.
"The people of California deserve to have their marriage amendment defended before the full appeals court," said ADF Senior Counsel Brian Raum. "The panel's ruling mischaracterized the purpose of marriage, failed to faithfully and fairly interpret the Constitution, and disregarded every relevant appellate and Supreme Court precedent in American history.
"Marriage is too valuable to be redefined by two San Francisco judges in a case funded by Hollywood millionaires," added Raum.
On Feb. 7, two judges on a three-judge 9th Circuit panel concluded in Perry v. Brown that California's marriage amendment – Article I, Section 7.5 of the state constitution – is unconstitutional in part because the court believed claims that voters sought to "target a minority group." Proposition 8, which defines marriage as between one man and one woman, had been passed by a majority of state voters in November 2008.
As reported by The Christian Post on Feb. 13, lawyers for the groups supporting Proposition 8 basically had three viable legal options.
They included asking the full 9th Circuit to review the case, bypassing the 9th Circuit and requesting that the U.S. Supreme Court hear the case, or simply doing nothing and allowing the ruling to stand.
Dr. Kevin Lewis, a legal and theology professor at Biola University in Los Angeles, told CP he felt attorneys would ask for the en banc review before going to the Supreme Court.
"You've got to be extremely careful about requesting the Supreme Court review this case," Lewis told The Christian Post. "If Justice Kennedy feels sympathetic toward the case and how narrowly it is written, then same-sex marriage could become the law of the land. In other words, you've got to be careful what you ask for if you're not prepared for the wrong answer."
Legal scholars who have followed the case believed the strategy behind the request was to have the full 9th Circuit Court of Appeals – who has jurisdiction over nine western states – a chance to rule on the issue. The three-judge panel that ruled on the case issued a ruling so narrowly written, that their ruling affected only California.
"It's another procedural opportunity they have, so why give up another bite at the apple?" Stanford University law professor Jane Schacter told The Associated Press. "If the en banc decision was broad, it might be more likely to draw the attention of the Supreme Court because it would be a decision with national reverberations."
The request will now be put before the 25 Judges that sit on the 9th Circuit Appeals Court. If a majority of them agree to reconsider the case, it would then be assigned to a panel of 10 randomly selected judges and the chief judge.
However, the 9th Circuit Court of Appeals rarely reverses the decisions of its own judges.
Currently, six states allow same-sex marriage. They are Connecticut, New Hampshire, Iowa, Massachusetts, New York and Vermont, as well as the District of Columbia.
Washington State will soon be the seventh once their law takes effect in June. Maryland is expected to be the eighth state when the full legislature approves a measure passed by the Assembly last week.