Prop 8 supporters ask 9th Circuit to re-hear appeal

Attorney Ted Olson, lead co-counsel for the plaintiffs who challenged the constitutionality of Prop 8.
Attorney Ted Olson, lead co-counsel for the plaintiffs who challenged the constitutionality of Prop 8.
Damian Dovarganes/AP

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Supporters of California’s ban on same-sex marriage have asked the federal 9th Circuit appeals court to review its decision to strike down Proposition 8.

The organization “Protect Marriage” put Prop 8 on the ballot four years ago, and then they defended it when two same-sex couples challenged its constitutionality. When they lost, traditional marriage advocates appealed to the U.S. 9th Circuit Court of Appeals - and lost.

Earlier this month, two of the three judges who heard the appeal affirmed the lower court ruling that California’s same-sex marriage ban violates the civil rights of gays and lesbians.

Attorney Andy Pugno of "Protect Marriage" thinks a larger panel of 9th Circuit judges will disagree when they hear the rationale for the decision.

"It was constitutionally fine for the people of California to limit marriage... until the Supreme Court of California forced it on California, and then it became unconstitutional for the people to restore traditional marriage," argued Pugno. "We think that just creates a serious problem in logic and the law and that the 9th Circuit should have a chance to fix that."

UC Davis legal scholar Vik Amar says Prop 8 supporters have little to lose in a full panel review at the 9th Circuit.

"The proponents of Prop 8 could reasonably say to themselves, ‘Let’s take a shot at the 9th Circuit. If we win there, then we win. If we lose there, we can go back to the [U.S.] Supreme Court," Amar explained. "If we win - we win. So we’re really no worse off and we get two bites rather than one bite at the apple. We have two places we could win.'"

Amar says Prop 8 supporters do risk losing in one regard.

"Time is probably not on the side of Prop 8 proponents," the professor continued. "The later the Supreme Court reviews the case, the higher the chances are that the Supreme Court would embrace the plaintiffs claims of a right to same-sex marriage."

That’s because over time, he says, more states could pass laws that allow same-sex marriages.

Ted Boutrous, an attorney for the two couples who challenged the constitutionality of Prop 8, says he’s not worried about a full 9th Circuit review.

"We believe that all paths for us lead to one thing and that is Proposition 8 is going to be struck down," said Boutrous. "Some of them would take more time, some would take less. We want the speediest path but we’re ready for whatever happens."

A majority of the 9th Circuit’s dozens of active judges would have to agree to re-hear the appeal. If they do, the court randomly appoints 10 judges and the Chief Judge to convene a panel. If the court agrees to re-hear the Prop 8 decision, it may take another year to conduct a full hearing.