by Mike Andrew - SGN Staff Writer

The U.S. Ninth Circuit Court of Appeals has turned down a request from supporters of California's Proposition 8 to revisit their prior ruling that the measure is unconstitutional.

The June 5 decision leaves in place a February decision by a three-judge panel of the court, but allows Prop 8 supporters 90 days to appeal to the U.S. Supreme Court.

Prop 8, passed by California voters in 2008, reversed a California Supreme Court decision allowing same-sex marriages and reinstated a ban on such marriages in the state.

Federal district judge Vaughn Walker ruled that the ballot measure was unconstitutional in August 2010. After several months of litigation over who had standing to defend Prop 8 in court since state officials declined to do so, a panel of three Ninth Circuit judges heard the case and ruled in February of this year that Prop 8 violates the equal protection clause of the U.S. Constitution.

Prop 8 supporters then requested an en banc hearing - one with a larger panel of judges - which the Ninth Circuit refused in their June 5 ruling.

'The petition for rehearing en banc is DENIED,' the Ninth Circuit said in a brief statement.

'The mandate is stayed for ninety days pending the filing of a petition for writ of certiorari in the Supreme Court. If such a petition is filed, the stay shall continue until final disposition by the Supreme Court.'

A writ of certiorari is a document issued by the Supreme Court saying it will hear the appeal. The high court is not obligated to hear appeals, and in fact it hears only about one percent of the cases appealed to it each year.

Some legal observers believe the Supremes will decline to hear the Prop 8 case, even if they do take other marriage-related cases such as Gill v. OPM, which challenges the federal Defense of Marriage Act. Gill was decided by the First Circuit Court of Appeals on May 31, when it ruled that DOMA's definition of marriage as solely between a man and a woman is unconstitutional.

Typically, the Supreme Court will agree to take cases that involve broad legal principles, or those in which different federal courts have issued conflicting opinions.

In the Prop 8 case, however, the Ninth Circuit issued a very narrow ruling, which would have no application outside California, even if it does have an enormous impact on the future of same-sex couples in that state.

Ninth Circuit Court Judge Stephen Reinhardt, who wrote the opinion in the February decision, did not say that same-sex couples have an equal right to marry under the Constitution. Instead, he said that once Gay and Lesbian couples had been allowed to marry, however briefly, by a California Supreme Court decision, it was discriminatory to take that right away from them while allowing straight couples to continue to marry.

Significantly, Reinhardt's opinion quotes heavily from a 1996 opinion written by Justice Anthony Kennedy, the Supreme Court's crucial swing vote.

In Romer v. Evans, Kennedy wrote that a Colorado initiative to reverse local LGBT rights ordinances was unconstitutional because it took away rights from Gays and Lesbians alone, and from no one else.

Reinhardt's opinion repeatedly cites Kennedy's opinion. 'Prop. 8 singles out same-sex couples for unequal treatment by taking away from them alone the right to marry,' Reinhardt wrote, in one of many Romer citations.

Four of the Supreme Court's nine justices must agree to hear an appeal for it to be considered, but a majority - five justices - is necessary for a decision.

The Supreme Court's four most conservative justices - Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito - could vote to hear the case, but they would need Kennedy to vote with them to reverse the Ninth Circuit and save Prop 8. It was for this reason, many suspect, that Reinhardt relied almost exclusively on Kennedy's reasoning in Romer.

'Today's refusal by the Ninth Circuit to grant further review is a testament to the meticulous and well-reasoned opinion originally issued by the Court,' the National Center for Lesbian Rights said in a statement.

'While the supporters of Proposition 8 will now seek review by the U.S. Supreme Court, there is no doubt that they are on the wrong side of history. Excluding same-sex couples from the right to marry runs counter to our highest ideals of equality and fairness.'

The American Foundation for Equal Rights (AFER), the organization that supplied legal counsel for the challenge to Prop 8, said it believed the Supreme Court would ultimately uphold the Ninth Circuit if it does decide to hear the case.

'Today's order is yet another federal court victory for loving, committed Gay and Lesbian couples in California and around the nation,' said AFER co-founder Chad Griffin.

'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.'

In a statement celebrating the Ninth Circuit's decision, the Human Rights Campaign (HRC) acknowledged the role of AFER's lead attorneys, Republican Ted Olson and Democrat David Boies.

'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,' the HRC statement said.

'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.'

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