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9th Circuit refuses to re-hear Prop 8 case, which could be headed to Supreme Court

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A federal appeals on Tuesday denied a request to re-consider its decision on Proposition 8, a decision which clears the way for the U.S. Supreme Court to weigh in on the issue. Earlier this year a three-judge panel declared California’s voter-approved ban on same-sex marriage unconstitutional.

Earlier this year, three judges at the 9th Circuit Court of Appeals said the only conceivable purpose of California’s ban on same sex marriage was “to lessen the status and human dignity of gays and lesbians.”  In a 2-1 vote, the judges ruled Prop 8 “unconstitutional.” Proponents of the ban asked for a full 9th Circuit panel to reconsider the ruling

But to get a full panel review, they needed to persuade a majority of the court’s active judges — something they failed to do.

Prop 8 supporters have 90 days to appeal the decision to the U.S. Supreme Court. California’s same-sex marriage ban remains in effect until the nation’s highest court either declines to take the case, or issues a final ruling.

David Boies, an attorney for two same-sex couples who want to marry in California chalked it up as another victory.  
"Today, the entire 9th circuit has put its force behind the principal that everyone should be able to marry the person that they love," said Boies. 
But Prop 8 attorney Andy Pugno says not all the fedearl appeals judges agreed with the decision.
"You have a handful of dissenting judges in the 9th Circuit who think that the case should have been reheard," he pointed out, "because they think that the smaller panel’s decision was wrong."

Pugno says the dissenting opinion of those judges makes it more likely that the U.S. Supreme Court will take the case. Prop 8 attorneys plan to appeal to the nation’s highest court within 90 days. 

California’s ban on same-sex marriage stays in effect, pending the outcome.  If the Supreme Court justices decide to take the case, they could issue a ruling by next June.  If they decline to hear it, the 9th Circuit ruling would stand and same-sex couples in California could once again marry.

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