On February 21, 2012 the ProtectMarriage.com coalition, the official proponents of Proposition 8, petitioned the entire Ninth Circuit Court of Appeals to review the smaller panel’s February 7 decision in which they ruled 2-1 that California’s state amendment limiting marriage to one man and one woman was federally unconstitutional.
Because that decision conflicts with every state and federal appellate court which, when asked, has upheld traditional marriage as rationally related to the state’s interest in responsible procreation, the coalition decided to request an “en banc” review of the smaller panel’s opinion.
Ned Dolejsi, CCC executive director, remarked: “Because the voters of California were correct in affirming that marriage unites a woman and a man and any children from their union, I am pleased that the proponents of Proposition 8 are pursuing an en banc review of the narrow 2-1 ruling and allowing other justices of the Ninth circuit to opine. Of course the United States Supreme Court will ultimately decide the matter.
The decision is stayed until the Ninth Circuit responds to the request for an en banc review, and will no doubt be further enjoined until a final decision is rendered by the nation’s highest Court.
Judge Reinhardt, who wrote the February 7 opinion, targeted his arguments to U.S. Supreme Court Justice Anthony Kennedy, the author of the 1996 Romer v.Evans decision which struck down a Colorado law which prohibited local anti-discrimination laws against gays and lesbians. He drew the parallel of finding it unconstitutional to withdraw a right that a group had possessed—which is what had happened in Colorado—to Proposition 8 which overturned, by an amendment to the state’s constitution, a California Supreme Court decision of five months’ standing.
The narrow opinion did not address the fact that traditional marriage had never been ruled unconstitutional by any other federal court or that there was a rational reason for the state to affirm traditional marriage. The opinion did not review the highly questionable “facts” found by the district judge in his opinion that the voters of California only passed Proposition 8 for reasons of animus and that gays and lesbians were routinely excluded from the political process.
By asking for a review by a larger panel, the coalition hopes to have opinions addressing all aspects of the federal district court decision which is the basis of the appeal