Prop 8 will not be re-heard by the the Ninth Circuit Court of Appeals again, “en banc.” The court could have decided to chose an 11-judge panel to rehear the case, which it was not expected to do.

What’s next? Supporters of Prop 8 can petition the Supreme Court to try the case, or, after ninety days, same-sex couples in California can begin to marry again, if the case does not go to the Supreme Court.

The Ninth Circuit has decided to “stay” the ruling, which would mean that same-sex marriage would still not be allowed in California, until the end of the 90 days, or until the case goes to the Supreme Court.

Chances are strong that the supporters of Prop 8 will take their case to the Supreme Court, which probably would not hear the case until 2013 at the earliest.

The Prop 8 lawsuit questions the constitutionality of California’s constitutional amendment that bans same-sex marriage. Prop 8 was found to be unconstitutional by federal judge Vaughn Walker, and his ruling was upheld by federal judge James Ware.

A three panel Ninth Circuit court also upheld Judge Walker’s ruling, and today the Ninth Circuit denied the supporters of Prop 8 a re-hearing. They now have 90 days to ask the Supreme Court to hear the case. The Supreme Court could refuse. If it agrees, the makeup of the Supreme Court will most likely be the deciding factor in a same-sex marriage case.

Scottie Thomaston, writing at Courage Campaign’s Prop 8 Trial Tracker, notes:

It’s likely that Justices at the Supreme Court would have their conference to take up the petition and decide whether to grant review or not sometime after their summer break in October. Oral argument would follow a few months later, and then a final decision would be issued by June or July 2013.

Judge O’Scannlain has filed a dissent from the denial of en banc rehearing joined by Judges Bybee and Bea, and in it he discusses his belief that Judge Smith’s dissent was correct. He says that “we have now declared that animus must have been the only conceivable motivation for a sovereign State to have remained committed to a definition of marriage that has existed for millennia.”

No one is certain if the Supreme Court would grant review of the case as it currently stands. Judge Reinhardt’s opinion for the three-judge Ninth Circuit panel is very narrow and the holding is specific to California’s unique legal circumstances. A denial of rehearing in this case leaves the decision California-specific and there may not be four Justices – the number needed to grant certiorari – who want to visit an issue that’s so limited in scope. On the other hand, the panel’s decision did strike down an amendment to a constitution of an enormous state involving a contentious issue. And allowing gay couples to marry in California would nearly double the amount of people in the United States who live in an area that allows same-sex marriage.

AFER, the group that is opposing Prop 8, has created an excellent info graphic that explains more. You can see our report of it from yesterday, here.

“Once again, a federal court has affirmed that the cherished guarantees of our Constitution are there to protect all Americans – including lesbian, gay, bisexual and transgender people,” Human Rights Campaign (HRC) President Joe Solmonese said in a statement.”For over three years, the plaintiffs, the American Foundation for Equal Rights, and attorneys Ted Olson and David Boies have shown tremendous fortitude and perseverance in their fight for marriage equality.  With today’s announcement, we are one step closer to ensuring that gay and lesbian Californians – and, one day, our entire community nationwide – are able to join the institution of marriage and have their love and commitment respected equally.”

“Today’s announcement is another significant step on a path that we all know leads to equality.  While the U.S. Supreme Court may ultimately decide the outcome of this case, we must all continue to walk that path – in this case and other courtrooms, in legislatures, at ballot boxes and at kitchen table – until all LGBT people are fully and equally part of the American community.”

Other organizations are starting to weigh in.

“Today’s decision means we are one significant step closer to ensuring fairness and freedom for all American families,” said Family Equality Council Executive Director Jennifer Chrisler. “A majority of Americans, President Obama and many of our nation’s elected leaders have changed their hearts and minds to support marriage equality for our families. Now we have renewed hope that the laws and policies of country will change as well. We look forward to the day when our children and grandchildren can be assured of full equality and full protection under the law.”

The National Center for Lesbian Rights’ Executive Director Kate Kendell stated:

“Today’s refusal by the Ninth Circuit to grant further review is a testament to the meticulous and well-reasoned opinion originally issued by the Court. While the supporters of Proposition 8 will now seek review by the U.S. Supreme Court, there is no doubt that they are on the wrong side of history. Excluding same-sex couples from the right to marry runs counter to our highest ideals of equality and fairness.”

Evan Wolfson, founder and President of Freedom to Marry:

“Today’s decision by the Ninth Circuit to deny a rehearing of Perry vs. Brown brings committed same-sex couples in California one step closer to being able to marry.  It’s now been three-and-a-half years since the freedom to marry was stripped from from loving and committed same-sex couples.  It is long past time for this ‘gay exception’ to marriage in California to come to an end.   Freedom to Marry calls on all Americans to join us in continuing to make as strong a case in the court of public opinion as legal advocates are making in the court of law.”

Via Marriage Equality New York:

“The momentum for the freedom to marry seems unstoppable,” said Stuart Gaffney, Marriage Equality USA’s Media Director. “Three weeks ago, the President of the United States announced his support for marriage equality. Last week, the 1st Circuit Federal Court of Appeals held that the so-called Defense of Marriage Act is unconstitutional. And today, the 9th Circuit Federal Court of Appeals upheld its earlier decision striking down Proposition 8. Nationwide polls have shown majority support for the freedom to marry for the last two years, and Californians now favor marriage equality by a 59 – 34 percent margin, according to the latest polling,” said Gaffney.

“Earlier this year, a 3-judge panel of the Ninth Circuit held that Proposition 8’s targeting lesbian and gay people and taking away their freedom to marry violated the equality and fairness guarantees of the United States Constitution. Today, a majority of the Court agreed, by declining to revisit the ruling. If the United States Supreme Court also declines to review the case, loving, committed lesbian and gay couples could be able to marry again in California later this year or early next year,” said John Lewis, Marriage Equality USA’s Legal Director.

Thom Watson and Jeff Tabaco of Daly City have been waiting to marry since Prop 8 was passed almost 4 years ago. “This month Jeff and I begin our 10th year together as a couple,” noted Watson. “When Judge Vaughn Walker heard closing arguments two years ago this month, he quipped, ‘June is, after all, the month for weddings,'” stated Tabaco. “It would be wonderful if this June marked the final decision in the case, and Thom and I could celebrate our 10th anniversary by getting legally married,” he continued. “A few days ago First Lady Michelle Obama stated: ‘In a country where we teach our children that everyone is equal under the law, discriminating against same-sex couples just isn’t right.’ We applaud our courts’ standing up for what’s fair and right and urge them to continue to do so,” concluded Watson.

Developing — stay tuned.

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