Gay Marriage Supporters Ask Judge to End Prop. 8

The group is fighting an attempt to have another ruling on the controversial measure.

Friday, Mar 2, 2012  |  Updated 8:01 AM PDT
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Tori (L) and Kate Kendall, who already share the same last name, hold their five-month-old baby Zadie while being joined in wedlock as the era of same-sex marriage n California, June 17, 2008.

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Supporters of same-sex marriage urged a federal appeals court in San Francisco Thursday to decline to reconsider a ruling that struck down California's Proposition 8.

Last month, a three-judge panel of the 9th U.S. Circuit Court of Appeals ruled by a 2-1 vote that Proposition 8, a voter-approved ban on gay and lesbian marriage, violates the U.S. Constitution.

The sponsors of the initiative have asked the appeals court to have an expanded 11-judge panel reconsider that decision.

In Thursday's filings, two same-sex couples who challenged Proposition 8 and the city of San Francisco opposed the bid for a rehearing.

Both argued that the smaller panel's decision was correct and that further consideration would be "an unnecessary step."

Both also noted that reconsideration might require the court to address broader and more complex constitutional questions that could be avoided by leaving last month's ruling in place.

The smaller panel's Feb. 7 decision was made on narrow grounds that would apply only to California.
      
The panel majority said that because same-sex marriage was legal in California for several months in 2008, it was unfair for Proposition 8, enacted in November of that year, to target gays and lesbians and take away a right with no reasonable justification.

The question of whether to grant a rehearing will now go before the appeals court's 25 active judges for a vote. If the full court decides to reconsider the case, an 11-judge panel will be made up of the court's chief judge and 10 other randomly selected judges.

The circuit court has no deadline for acting on the bid for a rehearing.

If the court denies reconsideration, sponsors of Proposition 8 could then appeal to the U.S. Supreme Court.  If there is a rehearing, the court's eventual decision could also be appealed to the Supreme Court by the losing side, but the rehearing process would cause a delay of months before the final step of a high court appeal. 
   
Proposition 8's sponsors argued in their Feb. 21 request for a rehearing that voters had a reasonable and nondiscriminatory justification for approving the measure.

That rationale, the sponsors contend, is an intent to ensure that procreation by male-female couples would be channeled into "enduring, stable unions" and responsible child-rearing.
 

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