Federal appeals court refuses to revisit same-sex marriage ruling

Getty Images File PhotoNontraditional: Prop. 8 supporters and dissenters will now wait for the case to be taken to a conservative U.S. Supreme Court for a final federal decision.

The fight over California’s ban on same-sex marriage is poised to go to the U.S. Supreme Court after an appeals court refused to reconsider its ruling earlier this year striking down Proposition 8.

The decision by the federal appeals court keeps intact a U.S. District Court judge’s 2010 ruling that the state’s ban on same-sex marriage, passed by voters in 2008, is unconstitutional.

“This is a great step forward towards the day when everyone will be able to marry the person that they love,” said attorney David Boies, who helped argue the case on behalf of two same-sex couples who sued to overturn Prop. 8.

Having now been handed repeated losses in federal district and appeals courts in San Francisco, Prop. 8 sponsors said they would ask the more conservative U.S. Supreme Court to take up the case.

“We will promptly file our appeal to the nation’s highest court and look forward to a positive outcome on behalf of the millions of Californians who believe in traditional marriage,” said Protect Marriage attorney Andy Pugno.

Boies’ co-counsel Theodore Olson said the U.S. Supreme Court could decide in October whether to hear the case, and would likely render a decision on Prop. 8’s constitutionality by next June.

Tuesday’s 9th U.S. Circuit Court of Appeals decision denied Prop. 8 sponsors a rehearing before an 11-judge panel of its three-judge ruling in February that the measure violated equal protection rights of gays and lesbians.

The Prop. 8 ruling by the appeals court followed last week’s appeals court ruling in Boston that found part of the federal Defense of Marriage Act unconstitutional, as well as polls indicating Americans’ support for same-sex marriage may be increasing, and President Barack Obama’s recent pronouncement that he personally supports it.

The recent events have proponents of same-sex marriage saying they believe momentum is on their side.

“There has been a tremendous shift,” said Chad Griffin of the American Foundation for Equal Rights. “It is clear where this country is headed. And we are now in a place where the question is no longer if, but when.”

The dissolution of Prop. 8 remains on hold for at least 90 days, pending the appeal to the U.S. Supreme Court. If the court refuses to take up the case, the 9th Circuit’s decision would stand, paving the way for same-sex marriages in the state.

aburack@sfexaminer.com

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