Same-Sex Marriage Ban to Move to Supreme Court

The 9th U.S. Circuit Court of Appeals cleared the way on Tuesday for the U.S. Supreme Court to consider California's gay marriage ban, declining an appeal to revisit the case.

Of the Circuit Court’s 25 judges, only three dissented. Conservative jurists Diarmuid O'Scannlain, Carlos Bea, and Jay Bybee indicated a desire to rehear the case but were outvoted by a strong majority of their colleagues.

Same-sex couples in California will not be able to wed immediately — the ruling invalidating Proposition 8 has been stayed until supporters of the gay-marriage ban have exhausted their ability to appeal.

Supporters of the 2008 ban, Proposition 8, have lost two rounds in federal court but have made clear they will appeal to the U.S. Supreme Court and hope for a favorable response from the conservative-leaning court.

The top U.S. court could agree to hear the matter in the session beginning in October, putting it on track to decide the case within a year. It could also decline to review Prop 8.

The case has also attracted national attention due to the star power of the two attorneys challenging Proposition 8, David Boies and Theodore Olsen. Both are considered among the nation’s top attorneys, but their alliance has surprised some legal analysts: they were once opponents in the most high-profile Supreme Court case in recent memory, each representing one side of the Bush v. Gore recount case in 2000. Boies represented Gore while Olsen, who would go on to serve as Solicitor General under George W. Bush, represented the Republican in the high-stakes court battle.

President Barack Obama last month turned gay marriage into a 2012 campaign issue, saying he believed same-sex couples should be able to marry. Republican Mitt Romney disagrees.

The vast majority of U.S. states limit marriage to opposite-sex couples, and popular votes have consistently approved bans on widening those rights.
But polls show growing acceptance of same-sex nuptials, which have been legalized in eight states and the District of Columbia, thanks to votes by legislators and court decisions.

The 1st Circuit Court of Appeals in Boston last week ruled that the federal Defense of Marriage Act unconstitutionally denied benefits to same-sex couples in a state where gay marriage was legal.

The U.S. Supreme Court would set national precedent if it decided to take the California case. Appeals courts have so far declined to rule broadly on whether marriage is a fundamental human right for same-sex couples as well as heterosexuals.

Reuters contributed to this report.