Backers of California’s ban on same-sex marriage urged a federal appeals court Tuesday to reconsider and reject a Feb. 7 ruling against Proposition 8, arguing that California voters did not express disapproval of gay people but simply wanted to preserve marriage.
“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,’ ” contended ProtectMarriage, the sponsors of the 2008 ballot measure that reinstated a marriage ban. “It is simply not true that when the government provides special recognition to one class of individuals, it demeans others.”
ProtectMarriage asked the U.S. 9th Circuit Court of Appeals to grant a so-called en banc review: reconsideration by a panel that would include Chief Judge Alex Kozinski and 10 other judges chosen randomly.
Such review, granted in a small percentage of cases, requires the support of a majority of the circuit’s roughly two dozen active judges. Most are Democratic appointees.
ProtectMarriage argued that the 9th Circuit panel’s 2-1 ruling striking down Proposition 8 misinterpreted a key U.S. Supreme Court precedent and wrongly concluded that the ballot measure stigmatized gays and lesbians.
“It is simply not stigmatic for the law to treat different things differently … or to call different things by different names,” the group argued.
Legal scholars said ProtectMarriage’s decision to ask for reconsideration rather than appeal directly to the U.S. Supreme Court gave the group a possible second chance with the intermediate court. But some scholars were skeptical that the 9th Circuit would agree to further review.
“Those who support Prop. 8 hope that by the luck of the draw they can get an en banc panel that would agree with them,” said UC Irvine Law School Dean Erwin Chemerinsky. “But I think that is exactly why a majority of judges on the 9th Circuit will not want en banc review.”
He said most 9th Circuit judges were more likely to agree with the panel’s majority ruling than the dissent.
By asking for reconsideration, ProtectMarriage “doesn’t have much to lose,” said UC Davis law professor Vikram Amar. He said he expected a close vote on whether to review the ruling.
“I think there will be a lot of memos flying back and forth, and I wouldn’t be surprised if it came out either way,” Amar said.
Lawyers for ProtectMarriage have said they believe the high court will eventually review the dispute over Proposition 8.
Andy Pugno, the group’s chief lawyer, said ProtectMarriage wanted to give the entire 9th Circuit “a chance to correct this anomalous decision by just two judges overturning the vote of seven million Californians.”
The panel’s ruling was based on a 1996 U.S. Supreme Court precedent that said a majority cannot take away rights from a minority without a legitimate reason. The impact of the 9th Circuit’s decision would be limited to California.
Lawyers said they expected the 9th Circuit to decide within the next few weeks whether to accept the case. If granted, en banc review could take a year or more, which would delay U.S. Supreme Court review. An en banc ruling could also be appealed to the nation’s highest court.
Loyola law professor Douglas NeJaime said delay might harm ProtectMarriage’s chances of winning before the high court.
“The more you have states moving toward marriage for same-sex couples, the less likely the Supreme Court is going to reverse the 9th Circuit,” NeJaime said.