The sponsors of Proposition 8 decided to appeal to a bigger panel of the 9th U.S. Circuit Court of Appeals instead of going directly to the U.S. Supreme Court to seek reversal of the 2-1 ruling that the measure violates the civil rights of gays and lesbians, Protect Marriage legal counsel Andy Pugno said.
Lawyers for Protect Marriage, the coalition of religious and legal groups that qualified the ban for the 2008 ballot, faced a midnight Tuesday deadline for petitioning the 9th Circuit to reconsider the opinion issued two weeks ago.
The move means same-sex marriages will remain on hold at least until the 9th Circuit decides to accept or reject the rehearing petition. The court does not have a deadline for doing so.
"Generally speaking, we think the 9th Circuit as a whole deserves the chance to basically fix this because the decision is such an outlier, it's really not representative of what the 9th Circuit's thinking on this issue has been," Pugno said.
He said backers of the ban made the decision even though the 9th Circuit is considered to be liberal in its rulings.
"There is liberal and then there is insanity, and there is just no way the entire 9th Circuit would sign off on a decision like this," Pugno said.
If a majority of its more than two dozen actively serving judges agrees to reconsider the case, it would be assigned to a panel of 11 randomly selected judges.
Proposition 8 amended the California Constitution to outlaw same-sex marriages five months after the state Supreme Court threw out a pair of statutes that limited marriage to a man and woman. The proposition was approved by voters in November 2008 with 52 percent of the vote.
"Today's petition shows how far the anti-marriage proponents of Proposition 8 will go to ensure that gay and lesbian Americans remain second-class citizens," said Chad Griffin, president of the American Foundation for Equal Rights, which sued to overturn the California ban. "Separate is never equal -- and I am confident that one day, very soon, every American will be able to enjoy the fundamental freedom to marry."
The 9th Circuit panel said in its Feb. 7 ruling that the amendment violated the U.S. Constitution's promise of equal protection because it singled out a minority group for disparate treatment for no compelling reason.
The two judges in the majority concluded that the law had no purpose other than to deny gay couples marriage, since California already grants them all the rights and benefits of marriage if they register as domestic partners.
The lone dissenting judge insisted that the ban could help ensure that children are raised by married, opposite-sex parents.
All three judges agreed there was no evidence that former Chief U.S. Judge Vaughn Walker, who struck down Proposition 8 after conducting a 13-day trial, should have disclosed that he was gay and in a long-term relationship with another man before he presided over the proceedings.
The appeals court focused its decision exclusively on California's ban, rather than stating that banning same-sex marriages would be unconstitutional in every instance, even though the court has jurisdiction in nine western states.
Whether same-sex couples may ever be denied the right to marry "is an important and highly controversial question," the court said. "We need not and do not answer the broader question in this case."
Legal analysts have questioned whether the Supreme Court would agree to take the case because of the narrow scope of the ruling.
Six states allow gay couples to wed -- Connecticut, New Hampshire, Iowa, Massachusetts, New York and Vermont -- as well as the District of Columbia. The governor of Washington signed a bill last week that would make that state the seventh.
But California, as the nation's most populous state and home to more than 98,000 same-sex couples, would be the gay rights movement's biggest prize of them all.