A federal appeals court has cleared the way for the Supreme Court to consider California's voter-approved ban against marriage equality. The full U.S. Court of Appeals for the Ninth Circuit has declined to review the February decision of that court upholding the landmark ruling California’s Proposition 8 was unconstitutional.
The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the non-recused active judges in favor of en banc consideration. Fed. R. App. P. 35. The petition for rehearing en banc is DENIED. 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.
Proposition 8 was passed by California voters in November 2008. The voter initiative reinstated a ban on same-sex marriage that struck down only six months earlier by the state Supreme Court. Two same-sex couples later sued in federal court and maintained that it violated the U.S. Constitution. Chief U.S. Judge Vaughn Walker ruled in August 2010 that Prop 8 violated the Constitution's equal protection clause.
A three-judge panel upheld the ruling by a 2-1 vote last February. The ruling is limited to California. The anti-gay sponsors of the ballot initiative asked the 9th Circuit to assemble an 11-judge panel—known as en banc—to rehear the case. A majority of the circuit’s judges voted against such reconsideration.
Today's decision means the Supreme Court is likely to have two significant gay rights cases on its docket: Last week another federal appeals court struck upheld a lower court ruling that struck down the Defense of Marriage Act.