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court counters Proposition 8

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placeholder June 11, 2012   •   VOL. 50, NO. 10   •   Oakland, CA
Appeals court counters Proposition 8

SAN FRANCISCO — Laws permitting same-sex marriage are destined for the Supreme Court after the second federal court in a week acted on challenges to such laws.

The 9th U.S. Circuit Court of Appeals said June 5 it would not revisit a ruling by a three-member panel of the court that said a voter-approved ban on same-sex marriage is unconstitutional.

The brief order explained that one 9th Circuit judge had requested an "en banc" rehearing, meaning it would be reconsidered by the full 9th Circuit. The request "failed to receive a majority of the votes" of the 26 eligible judges of the circuit, the order said.

In a 2-1 ruling in February, the panel found California's voter-approved Proposition 8, barring same-sex marriage, was unconstitutional.

The November 2008 initiative reversed the May 2008 state Supreme Court ruling that said the state's ban on same-sex marriage was unconstitutional. A month after that ruling, the state began issuing marriage licenses for same-sex couples, a practice that continued until the day after the Proposition 8 vote occurred.

The latest 9th Circuit order specified that its mandate — which would allow same-sex marriages to resume in California — would be stayed for 90 days to give the supporters of Proposition 8 a chance to file an appeal with the U.S. Supreme Court.

The Associated Press reported June 5 that the attorneys for the backers of Proposition 8 said they would appeal to the Supreme Court.

The 9th Circuit action followed a ruling by the Boston-based 1st U.S. Circuit Court of Appeals May 31 saying a key provision of the federal Defense of Marriage Act is unconstitutional and acknowledging that the final decision would be up to the Supreme Court.

The 1st U.S. Circuit overturned the provision of the 1996 federal law, known as DOMA, that defines marriage as "a legal union between one man and one woman as husband and wife."

The U.S. Conference of Catholic Bishops and the Massachusetts Catholic Conference, which had urged the court to uphold the law, jointly issued a press release June 1 calling the ruling disappointing.

The president of the National Organization for Marriage, which opposes same-sex marriage, accused the judges of inventing the legal path to the ruling.

"Liberal federal judges in Massachusetts and California have resorted to making up legal standards in order to justify redefining marriage," said a statement from Brian Brown. "They realize the legal precedent doesn't allow them to redefine marriage, so they are making up new standards to justify imposing their values on the rest of the nation."

Judge Michael Boudin, who wrote the opinion, was appointed to the 1st Circuit by President George H. W. Bush. The other two judges who joined the opinion were Judge Sandra Lynch, appointed by President Bill Clinton and Judge Juan Torruella, appointed by President Ronald Reagan.

The panel cited previous Supreme Court rulings that struck down laws determined to be discriminatory against a class of people as being among the keys to their ruling. They also stayed their ruling pending review by the Supreme Court.

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