The majority of the 25 active judges in the 9th Circuit decided the court will not rehear the case en banc.
The concurring opinion that provided the reasoning for the majority’s refusal said the February decision of the court to strike down Proposition 8 did not rule on the validity of same-sex marriage under the US Constitution, but rather on “the particular circumstances relating to California’s Proposition 8.”
“We held only that under the particular circumstances relating to California’s Proposition 8, that measure was invalid. In line with the rules governing judicial resolution of constitutional issues, we did not resolve the fundamental question that both sides asked us to: whether the Constitution prohibits the states from banning same-sex marriage,” stated the concurring opinion.
“That question may be decided in the near future, but if so, it should be in some other case, at some other time.”
Brad Dacus, president of the Pacific Justice Institute and supporter of Proposition 8, said the 9th Circuit’s refusal to review its February decision was a way to ‘expedite’ the same-sex marriage question to the U.S. Supreme Court.
“Irrespective of the individual position the judges on the 9th Circuit may have with regards to Prop 8, they pretty much all know that it’s going to be decided one way or the other before the United States Supreme Court,” Dacus told CNSNews.com.
“And it just makes good jurisprudence for them to allow the matter to be expedited and heard before the Supreme Court if in fact it is most apparent that the Supreme Court will be taking up that issue one way or the other,” he added.
Dacus added that he is “cautiously optimistic” about the case going to the Supreme Court because he believes the court will ultimately deem Proposition 8 as constitutional.
National Organization of Marriage President Brian Brown voiced his opposition to the 9th Circuit Court's decision.
“Today the full 9th Circuit Court of Appeals refused to re-hear the decision striking down Prop 8. Millions of Californians who gave their time and treasure to protect marriage deserve better," said Brown. "We are calling on the U.S. Supreme Court to preserve our democratic rights and overturn this action of judicial arrogance.”
Brown also cited the court's dissenting opinion that supported the request to rehear the case as an en banc court.
“We have overruled the will of seven million California Proposition 8 voters based on a reading of Romer [Romer v. Evans] that would be unrecognizable to the Justices who joined it, to those who dissented from it, and to the judges from sister circuits who have since interpreted it,” said the dissenting opinion. “We should not have so roundly trumped California’s democratic process without at least discussing this unparalleled decision as an en banc court.”
In 2008, 52 percent of California voters supported Proposition 8 to amend the state constitution and legally define marriage as between one man and one woman.
In February, the 9th Circuit upheld the 2010 ruling of U.S. District Judge Vaughn Walker who overturned Proposition 8 and determined it to be unconstitutional.
In the court's majority opinion, Judge Stephen Reinhardt rejected Proposition 8 on the grounds of the Equal Protection Clause of the U.S. Constitution and that California voters did not have legitimate reasoning to pass something that “treats different classes of people differently.”