SAN FRANCISCO — The US Ninth Circuit Court of Appeals announced Tuesday that an 11-judge panel has declined to hear an appeal of a decision that struck down California’s ban on gay marriage.
Advocacy-group Protectmarriage.com was seeking to reverse a 2-1 ruling by a panel of Ninth Circuit judges that held that the state’s prohibition on same-sex marriage, known as “Proposition 8,” violated the equal protection rights of gay men and women guaranteed by the US Constitution.
Protectmarriage.com can still take the case to the US Supreme Court.
The advocacy group had the option to appeal the Feb. 7 decision directly to the US Supreme Court, but elected instead to first request a panel of 11 Ninth Circuit judges — known as an en banc hearing — to review the merits of the case.
But the Ninth Circuit announced Tuesday that the en banc panel declined to hear it.
“The matter failed to receive a majority of the votes of the non-recused active judges in favor of en banc consideration,” the court wrote.
Two Republican-appointed Ninth Circuit judges joined Reagan-nominee Judge Diarmuid O’Scannlain’s dissenting opinion that called for an en banc rehearing of the case.
“We should not have so roundly trumped California’s democratic process without at least discussing this unparalleled decision as an en banc court,” O’Scannlain wrote.
He also opined that the Ninth Circuit’s denial “silenced any such respectful conversation” of President Barack Obama’s statement that same-sex marriage is an issue that should be handled by the states.
Ninth Circuit Judge N.R. Smith also indicated he would have granted the en banc review, but did not join O’Scannlain’s dissent.