San Francisco's 9th Circuit Court of Appeals has decided it will not revisit the constitutionality of California's Proposition 8 gay marriage ban, which clears the path now for the U.S. Supreme Court to take up the issue.
To be heard by an 11-member panel, a majority of the court's 25 active judges would have to vote for a rehearing the case. The motion failed to get a majority, the decision said.
The decision, released this morning on the court's website, leaves untouched a February ruling by a three-judge panel of the court that the voter-approved ban discriminated against gays and lesbians. The panel rejected the argument by groups seeking to uphold the law that the measure furthered "responsible procreation."
"This is a great day for Americans who care about equality," said attorney David Boies, co-counsel for plaintiff's seeking to overturn the Proposition 8 initiative. He added: "This vestige of state-sponsored discrimination and second class citizenship will be removed from the constitution of our state."
Brian Brown, president of the National Association for Marriage, which opposes same-sex marriage, said the decision paves the way for a U.S. Supreme Court ruling on California's gay marriage ban.
"I think now this will get us more quickly to the U.S. Supreme Court, where this nonsense will stop and we will win," Brown said. "There is no constitutional right to redefine marriage. It is pretty simple."
Other cases may be headed in the same direction.
Last week, for example, Boston's 1st Circuit Court of Appeals ruled that the federal Defense of Marriage Act is unconstitutional for denying benefits to same-sex couples in states where gay marriage is legal.
Legislators and court decisions have legalized same-sex marriage in Massachuetts, seven other states and the District of Columbia. But when the issue has come to a popular vote, as it did four years ago in California, the the electorate has limited marriage to opposite-sex couples.
Public opinion since then has been shifting, with national polls showing growing acceptance of same-sex marriage.
The hot-button issue took a higher profile last month when Democratic U.S. President Barack Obama's announced last month that he favors making marriage legal for same-sex couples.
Obama's Republican opponent in the presidential race, former Massachusetts Mitt Romney, opposes gay marriage.
Ninth Circuit judges Diarmuid Fionntain O'Scannlain, Jay S.Bybee and Carlos T. Bea dissented, citing Obama's remark that he believes the U.S. Constitution leaves the issue for states to decide and that the president would like to see the discussion over gay marriage continue "in a respectful way."
"Our court has silenced any such respectful conversation," the judges wrote.
The Bee's Peter Hecht contributed to this report.
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