By Neal Broverman
Originally published on Advocate.com June 04 2012 4:38 PM ET
(UPDATE: Court Rules It Won't Rehear Case)
The Ninth Circuit Court of Appeals will decide on Tuesday whether to grant an en banc review to antigay groups seeking to keep Proposition 8 alive in California, the American Foundation for Equal Rights reports.
The nation's most populous state narrowly passed Prop. 8, a California constitutional amendment banning same-sex marriage, in 2008. A federal challenge to the ban, led by AFER, has been very successful, with wins in federal district court and in the Ninth Circuit Court of Appeals.
After a three-judge panel in February agreed with Judge Vaughn Walker's 2010 decision that ruled Prop. 8 unconstitutional because it violated the equal protection clause and the due process clause of the U.S. Constitution, the proponents of Prop. 8 sought an en banc review. Such a review would require judicial evaluation by the full Ninth Circuit Court of Appeals and would likely include approximately a dozen appellate judges.
Should the Ninth Circuit deny en banc review, Prop. 8 backers could appeal to the U.S. Supreme Court, setting the stage for a national case on marriage equality. It's not clear if marriage would be allowed in California if an en banc review is denied — if that's the case, 23% of Americans would live in a state where marriage equality is once again guaranteed by law.