SAN FRANCISCO – A federal appeals court in San Francisco plans to announce Tuesday if it will rehear a legal challenge to California's same-sex marriage ban or send the landmark case on to the U.S. Supreme Court.
The 9th Circuit Court of Appeals said Monday it was ready to reveal whether a majority of its actively serving judges has agreed or refused to reconsider a February ruling by two of its member judges declaring the ban unconstitutional.
The decision is important because it affects how much longer the issue, which is expected to be appealed to the Supreme Court no matter what the 9th Circuit does, will take to resolve.
Same-sex marriages briefly were legal in California before voters approved Proposition 8 in November 2008, which barred gay and lesbian couples from marrying.
Two unmarried couples sued to overturn the ban in May 2009, and their lawsuit gave rise the next year to the first federal trial to examine if states can prohibit gays from getting married without violating the constitutional guarantee of equality. U.S. District Judge Vaughn Walker ultimately sided with the couples.
After the ban's sponsors appealed, a 9th Circuit panel by 2-1 affirmed Walker's finding that Proposition 8 violated the civil rights of gay and lesbian Californians. But, instead of finding any gay marriage ban would be unconstitutional, the panel limited its decision to California, saying Proposition 8 improperly took away an existing right.
The ban's backers asked the full 9th Circuit to review the decision instead of appealing directly to the U.S. Supreme Court. If the full appeals court decides to rehear the case, it will go before the chief judge and 10 randomly selected judges, delaying a final resolution from the Supreme Court.
The 9th Circuit does not agree to such banc reviews very often. The practice is reserved for "a question of exceptional importance" or when the original panel's decision appears to conflict with Supreme Court or 9th Circuit precedents.
Several other high-profile same-sex cases also are making their way toward the high court. A three-judge panel of the Boston-based 1st U.S. Circuit Court of Appeals declared last week that the federal law that prohibits recognition of same-sex couples unconstitutionally denies Social Security and other federal spousal benefits to married gay couples.
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