Advocacy Group To Appeal Prop. 8 Decision

(NewsCore) - The advocacy group backing Proposition 8 asked the Ninth Circuit US Court of Appeals Tuesday to overturn a recent decision that struck down California's ban on gay marriage.

Protectmarriage.com is seeking to reverse a 2-1 decision by a panel of Ninth Circuit judges that held the state's prohibition on same-sex marriage, known as "Proposition 8," violated the equal protection rights of gay men and women guaranteed by the US Constitution.

Protectmarriage.com had the option to appeal the Feb. 7 decision directly to the US Supreme Court.

The anti-same-sex marriage group elected instead to request a panel of 11 Ninth Circuit judges -- known as an en banc hearing -- to review the merits of the case.

"Generally speaking, we think the 9th Circuit as a whole deserves the chance to basically fix this because the decision is such an outlier, it's really not representative of what the 9th Circuit's thinking on this issue has been," Andy Pugno, legal counsel for Protectmarriage.com, told the San Jose Mercury News.

Attorneys seeking to maintain their Feb. 7 victory said they would oppose the en banc review.

A majority of the Ninth Circuit's more than two dozen judges must vote for the case to advance in front of 11 judges.

Protectmarriage.com will still have the option of appealing the case to the Supreme Court after the Ninth Circuit proceedings have concluded.

California voters passed Proposition 8 in November 2008 with 52 percent of the vote.

In striking down Proposition 8 earlier this month, the three-judge Ninth Circuit panel did not rule that states and the federal government were required to recognize same-sex marriages as a fundamental right secured by the due process clause of the US Constitution's 14th Amendment.

Instead, Ninth Circuit Judge Stephen Reinhardt said in his majority opinion that the court decided only whether, under the US Constitution, the state of California could strip homosexuals of the right to marry after they had previously been permitted to wed.

Before the passage of Proposition 8, homosexuals were allowed to marry in the state after the California Supreme Court struck down a law banning same-sex marriage in May 2008.

Many legal experts said the Ninth Circuit's decision to avoid deciding whether same-sex marriage was a constitutional right lowered the chances the US Supreme Court would agree to hear the case and possibly influenced Protectmarriage.com's decision to ask for the en banc hearing.

The narrow ruling is "clearly meant to try, as best [the tree-judge Ninth Circuit panel] can, to insulate the decision from future review," David Masci, a senior researcher at the nonpartisan Pew Forum on Religion & Public Life, told The Wall Street Journal earlier this month.

Despite the Feb. 7 victory, homosexuals in California currently cannot obtain marriage licenses. The Ninth Circuit has issued a stay on same-sex marriages in California pending the outcome of the case's appeals process.

Read more: San Jose Mercury News