The Ninth Circuit Court refused on Tuesday to reconsider the decision in February striking down California’s Proposition 8, the voter-approved ban on same-sex marriages in the state. The Court, however, put the case on hold for at least 90 days to allow the proponents of the ballot measure to seek to appeal to the Supreme Court. The denial came over the dissents of three judges, who called this a “momentous case” and argued that the divided decision of a three-judge panel had resulted from a “gross misapplication” of a key Supreme Court ruling on gay rights. One other judge dissented, but did not join the three in their objection. The combination of orders and separate opinions can be read here.
The ruling will set the stage for a major test in the Supreme Court, although the panel ruling is a narrow one that explicitly avoided deciding whether gays and lesbians have a constitutional right to get married. The two judges who were in the majority in ruling against Proposition 8 briefly defended the narrowness of their decision in a concurring opinion Tuesday.
After the panel decision, the supporters of the measure had asked the full Circuit Court to reconsider the case en banc. At the request of an unidentified judge, a vote was taken among the 25 judges eligible to vote on the question, and a majority of 13 would have been required to grant such review. The final vote thus appeared to be 21-4, because the dissenting member of the panel favored en banc review, but did not join the dissenting opinion by three other judges.