- The Washington Times - Tuesday, June 5, 2012

Supporters of traditional marriage announced Tuesday they will petition to bring California’s Proposition 8 before the Supreme Court after a lower federal court refused to hear an appeal in the case.

A three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco denied Tuesday a request for a rehearing before the full court. The same three judges had ruled 2-1 in February that Proposition 8 violated constitutional equal-protection guarantees, upholding an earlier decision by a federal district judge.

“The lower court opinions were little more than an attack on the character and judgment of millions of Californians, and those decisions essentially ignored all relevant Supreme Court and appellate court precedent,” said Charles Cooper, lead attorney for ProtectMarriage.com, which ran the 2008 campaign for Proposition 8. “We are hopeful and confident that the Supreme Court will review the 9th Circuit’s decision.”

Tuesday’s 2-1 ruling, in which Judges Stephen Reinhardt and Michael Daly Hawkins outvoted Randy Smith, places a second high-profile same-sex marriage case on a fast track to reach the Supreme Court docket.

Last week, the 1st U.S. Circuit Court of Appeals in Boston struck down a federal law defining marriage as between one man and one woman, saying it violates the constitution by denying Social Security and other federal benefits to same-sex partners.

Gay-rights advocates cheered the 9th Circuit’s ruling and said they welcomed the high-court scrutiny.

“Should our case be heard by the United States Supreme Court, I am confident the justices will stand on the side of fairness and equality,” said Adam Umhoefer, executive director of the American Foundation for Equal Rights, in a fundraising plea issued shortly after the decision was released.

The order to deny an “en banc” rehearing was accompanied by a blistering dissent from three of the 9th Circuit’s other judges.

Judge Diarmuid O'Scannlain, who was joined by judges Jay Bybee and Carlos Bea, noted that President Obama recently called same-sex marriage a matter for states to decide even as he declared his support for such unions.

“We should not have so roundly trumped California’s democratic process without at least discussing this unparalleled decision as an en banc court,” said Judge O'Scannlain in the two-page dissent.

The two jurists who voted to deny the en banc hearing, Judges Reinhardt and Hawkins, took a jab at their colleagues for citing President Obama in their dissent.

“We are puzzled by our dissenting colleagues’ unusual reliance on the President’s views regarding the Constitution, especially as the President did not discuss the narrow issue that we decided in our opinion,” said the judges in a one-paragraph response to the dissent. “We held only that under the particular circumstances relating to California’s Proposition 8, that measure was invalid.”

Proposition 8, which defines marriage as the union of one man and one woman, was approved by California voters in November 2008 by a margin of 52 percent to 48 percent. The ballot measure reversed a 6-month-old ruling by the California Supreme Court striking down the traditional definition as unconstitutional.

Two same-sex couples, represented by high-profile attorneys David Boies and Ted Olson, sued to overturn Proposition 8. District Court Chief Judge Vaughn Walker declared the initiative unconstitutional in August 2010, a decision upheld by the 9th Circuit panel in February.

“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 decision said. “The Constitution simply does not allow for laws of this sort.”

In his dissent, Judge O'Scannlain excoriated the panel’s reasoning.

“Based on a two-judge majority’s gross misapplication of Romer v. Evans, we have now declared that animus must have been the only conceivable motivation for a sovereign State to have remained committed to a definition of marriage that has existed for millenia,” he said.

“Even worse, we have overruled the will of seven million California Proposition 8 voters based on a reading of Romer that would be unrecognizable to the Justices who joined it, to those who dissented from it, and to the judges from sister circuits who have since interpreted it.”