Calif. Prop 8 fight heading for Supreme Court

Bob Sodervick waves a gay pride flag outside of the Ninth U.S. Circuit Court of Appeals on June 5, 2012 in San Francisco, California. / Photo by Justin Sullivan/Getty Images

Updated 5:27 PM ET

(CBS/AP) SAN FRANCISCO - The sponsors of California's same-sex marriage ban said Tuesday they plan to ask the U.S. Supreme Court to review a landmark appellate court ruling that struck down the law as unconstitutional.

Alliance Defense Fund lawyer Brian Raum said Proposition 8 backers "absolutely" would take the case to the high court now that it has run its course at the 9th U.S. Circuit Court of Appeals.

Raum said he expected to get a ruling from the Supreme Court sometime in the fall on whether it would take the case. He did not know if the Proposition 8 defense team would take the entire 90 days they have to petition the Supreme Court.

Gay marriage supporters welcomed the latest news in the long-running legal battle. If the Supreme Court refuses to take up the case and lets the appellate ruling stand, same-sex marriages could be legal again in California by the end of the year.

If at least four justices agree to accept the case, oral arguments would likely be held next spring.

"The final chapter of the Proposition 8 case has now begun," said American Foundation for Equal Rights co-founder Chad Griffin, whose group is funding the effort to overturn the ballot measure. "Should the United States Supreme Court decide to review the 9th Circuit's decision in our case, I am confident that the justices will stand on the side of fairness and equality."

"This is a great step forward to the day when everyone will be able to marry the person they love," said attorney David Boies, who represents two couples who contested Prop 8, as reported by CBS San Francisco.

Gay-marriage opponents seek Prop. 8 review
Court: Calif. gay-marriage ban unconstitutional
Will Supreme Court enter gay marriage fight?

The move follows a federal appeals court's refusal to revisit a decision by two of its member judges declaring the voter-approved ban to be a violation of the civil rights of gays and lesbians in California.

Backers of the ban petitioned the full 9th U.S. Circuit Court of Appeals in February to review the decision instead of appealing directly to the U.S. Supreme Court.

Gay marriage opponents said at the time they would go to the high court if the appeals court declined to rehear the case.

Same sex unions were briefly legal in California before voters passed Proposition 8 in November 2008. Due to the ongoing legal wrangling, it's unlikely the practice will resume in the state anytime soon.

A majority of the 9th Circuit's 26 actively serving judges voted against giving the case a second look while leaving Proposition 8 in effect until a Supreme Court appeal is resolved.

Judge Diarmuid O'Scannlain issued a terse dissent, arguing that the full 9th Circuit should have reexamined its panel's 2-1 decision because in his view it was based on a "gross misapplication" of Supreme Court precedent and "overruled the will of seven million California voters." Judges Carlos Bea and Jay Bybee joined him in that opinion.

The 9th Circuit does not often agree to rehear cases, a procedure known as en banc review. Federal court rules reserve the practice for appeals that involve "a question of exceptional importance" or if the original decision appears to conflict with Supreme Court or 9th Circuit precedents.

Several other high-profile same-sex cases also are moving toward the high court. A three-judge panel of the Boston-based 1st U.S. Circuit Court of Appeals declared last week that the federal law that prohibits recognition of same-sex couples unconstitutionally denies Social Security and other federal spousal benefits to married gay couples.

The Massachusetts and California cases could reach justices at the same time, which "probably increases the likelihood the court will take the (Proposition 8) case," said Boies.

At the same time, because the 9th Circuit limited its decision to California instead of ruling that gay marriage bans are inherently unconstitutional, the Supreme Court might be inclined to let it stand, he said.

[rightontarget]

by 7-luckyseven June 5, 2012 9:55 PM EDT
The fact is that many people don't believe gays should be married. They are not "bigots". They are just people expressing their opinion as they should be allowed to do without being attacked and cllaed names.
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Well what many people "believe" should have NO BEARING WHATSOEVER on what others are legally allowed to do. Then it becomes a CONTROL issue. If you are just expressing your "opinion" fine and dandy but do NOT use that as an excuse to control what others can do with their own life!!!! If you don't "believe" in gay marriage then don't marry a gay person. Problem solved!

[aggietx]

All of our laws are based on a belief of what is right and wrong. It's not a control issue, it's a demand to not only accept but approve and force a belief on others.

[rightontarget]

ALL of our laws based on a "belief"?? Murder is wrong, stealing is wrong. Doing HARM to another individual is wrong. Laws are to PROTECT society, NOT TO DICTATE HOW THEY LIVE AND WHO THEY LOVE. That is such crap! It IS a "control" issue in this case. What constitutes a LEGAL marriage is NOT A MATTER OF BELIEF. It's the same as prejudice against a Black and White marriage back when that too was considered "illegal". This is STILL people trying to DICTATE who a person choses to love and be with. Of course there is no law against a gay couple living together, they just aren't allowed to "marry". Whoopee!! It is a matter of EQUAL rights with one particular portion of the population trying to DICTATE who another person CHOOSES to make that commitment with. It's all about SUPERIORITY. The "better than" mind set. Sure, some people say it's ok to give gays the same "legal" rights but just don't call it "marriage" because they want "real" married people to be considered "better" than those in a gay relationship. GET OVER IT! Just because a couple has a legal "marriage license" it does NOT mean that the "marriage" has to be recognized by any particular church. Your religious beliefs are your right but you do NOT have the right to impose those beliefs upon others! You also do NOT have the right to determine what you want to be "socially acceptable". Social "acceptance" changes as we progress and there is nothing you can do about that.

[raymailhot]

We should have cut the progressive idea that they can change the meaning of words for political gain. When President Clinton argued the meaning of "is" or "sex" the country and courts should have spoke up. If this nonsense was slapped down then, the rest of the dictionary would not be up for attack.

[expatriate2]

United States citizens now live in society where they can be arrested and jailed and held indefinitely without charges. Their phone calls, mail and e-mails can be intercepted and read. Law enforcement officers can break down their door at any moment without warrant or cause. And we are spending our time worrying about two to four percent of the population nd their right to be sexual deviants.

[LosAngelesCA]

There is no doubt in my mind the US Supreme Court will: a) hear the case; b) throw out the District Court and 9th Circuit decisions for lack of jurisdiction (Maynard v Hill); c) and because the CA Supreme Court already said prop 8 stands, that will be that.

They will hear it along with DOMA appeal. Perfect. That case is all about STATE'S rights.

It is simply not possible to have it both ways- you can not vote it in some states and for the states who say NO TO GAY MARRIAGE - you can not force them by a court decision.

Gay marriage is against the constitution in the State of CA and will be.

[nojoy01]

by askagain June 5, 2012 4:54 PM EDT
correction

nojoy01 - You may be overeaching. Around 30 states prohibit gay marriage in their constitutions. Around 8 states allow gay marriage. The issue is far from being resolved. The Supreme Court, if it hears the case, may decide gay marriage is a right or it may decide gay marriage isn't a right. Are you putting the cart before the horse?
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True Ask, predicting which way a/the SCOTUS will decide on any given case is sorta like guessing what next months' weather is going to be like based on the records. But I have seen it snow in July in the continental U.S. It was at the summit of Pike's Peak in Colorado. Yes, special circumstances, but it did snow, it was July (actually, it was the 4th of July), and Colorado is in the continental U.S. :) As far as same-sexx marriage & how SCOTUS will rule it is a tossup. In 1964 while striking down laws prohibiting interracial marriage SCOTUS determined that marriage was a constitutionally protected civil right. BUT that involved opposite sexx marriage. Therefore it is not necessarily a precedent to be used when ruling on same-sexx marriage constitutionality. So it could go either way. As for the "around 30 states" that have bans of same-sex marriages in their constitutions? If the SCOTUS decides that same-sexx marriages are a protected civil right then Federal Constitution trumps State Constitutions and they get to complain but will still have to allow same-sexx marriages.

[nojoy01]

by Mortar29Inf1SG June 5, 2012 4:38 PM EDT

Communities are free to set standards of bahavior. Thus, if that community finds homsexual acts as immoral, they are free to ban such acts. And not provide marriage licenses, etc that would promote such acts.
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Yes Mort, communities are free to set standards of behavior if those standards are within the frame work of the constitution of the united states. Hence the striking down of laws prohibiting people of different races from marrying, or people of different races from attending the same school, or drinking from the same water fountain, or sitting where ever they want when they eat a meal or ride a bus. SCOTUS has even struck down laws prohibiting "homosexual acts" as being unconstitutional. All of these actions were, at one time, very much "community standards" of various parts of this nation. Now, for an example of "community standards" that won't be struck down by the courts take smoking. Smoking tobacco is not a protected right under the constitution as marriage is. (in striking down the laws prohibiting mixed race marriages (1964) SCOTUS defined marriage as a "civil right" protected by the constitution) So a ban on smoking is permissible and can be enforced by civil and criminal procedures. Get the difference? If an activity is protected by the constitution then "community standards" lose. If an activity is not protected by the constitution then "community standards" prevail.

[freeamerica31]

What are you folks doing...drop the case because you can't win without a Constitutional Amendment. Everyone has a right to do what they want no matter how freakish it may seem to you as long as it doesn't effect your rights...and it doesn't.

You want to fix the problem quit giving tax breaks to married couples and their kids....now that's unconstitutional!

[FormerUSMCSergeant]

by 7-luckyseven June 5, 2012 9:55 PM EDT
Yet not so much as intolerant haters who call anyone who doesn't tote the PC line "bigots".

The fact is that many people don't believe gays should be married.
---
Of course there are those who believe gays should be discriminated against.

And anyone who condones discrimination is, by definition, a bigot.

So wear the hat pal.....

[sparkorjump]

if the definition of bigot is anyone who condones discrimination, then the question is:
What constitutes discrimination?
Is it discriminatory not to reexamine or change laws whenever they are protested?
If one state changes their law, is it discriminatory for others not to follow suit?
Is it discriminatory for a group to try to undo state laws enacted by the people?

Gay rights groups organize and fund efforts to overturn state laws. In some cases, this has worked. Once the people have spoken, is it discriminatory to petition the courts to force those ideas on a populace that doesn't want them?

[LosAngelesCA]

"Judge Diarmuid O'Scannlain issued a terse dissent, arguing that the full 9th Circuit should have reexamined its panel's 2-1 decision because in his view it was based on a "gross misapplication" of Supreme Court precedent and "overruled the will of seven million California voters." Judges Carlos Bea and Jay Bybee joined him in that opinion."

My sentiments exactly. I am super angry. The CA Supreme Court Judge who started this whole mess RETIRED. Thanks for leaving such a great legacy. Your name is mud.

[LosAngelesCA]

I guess this is the only saving grace. "gross misappolication" of Supreme Court precedent is right. I trust that court to rule per precedent which: a) means that it is up to the states and CA Supreme Court let our constitutional amendment stand and b) Loving v Virginia was NOT about the right to marry but a violation of of equal protection of the law under the 14th amendment.

[Void-Master]

So if 7 million Californians voted that people of different ethnic backgrounds should not be allowed to marry, would that make it a done deal or should something be done to stop such arrogance?

Here's a thought. What if eventually gays came to outnumber straights in California -- and subsequently banned different-sex marriage. Would that be an acceptable community standard to you?

[LosAngelesCA]

I am so angry that my vote in support of what I believe marriage is has been quashed by a court. Half the states in the country have laws against gay marriage so why are you picking on us? I could care less who people have sex with. I do not think it is right to call marriage anything other than between a man and a woman. At least in most cases, that type of couple can procreate.

Next, the polygamists will want their equal rights and after all it is only fair. They want to marry who they love too.

We have standards as a culture. No one is saying to disciminate against gays. I do not agree with gay marriage.

[LosAngelesCA]

I forgot. Polygamists even procreate.

[Void-Master]

When cultural standards infringe upon the rights of individuals, it is the cultural standards that must change.