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California gay-marriage opponents launch a legal gambit

February 21, 2012 |  2:41 pm

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In deciding to ask a federal appeals court to reconsider the ruling against Proposition 8, backers of the ballot measure that banned same-sex marriage in California are gambling on the possibility that a more conservative panel of judges would issue a broader ruling in favor of such bans, legal scholars said Tuesday.

“They don’t have much to lose," UC Davis Law professor Vikram Amar said. “If they get a bunch of conservatives on the panel, they win.”

ProtectMarriage, sponsor of Proposition 8, the gay marriage ban overturned by the 2-1 decision, said it would ask the U.S. 9th Circuit Court of Appeals to rehear the case "en banc." An en banc panel in the 9th Circuit would consist of Chief Judge Alex Kozinski, a Republican appointee with libertarian leanings, and 10 other judges chosen randomly.

Legal scholars predicted a close vote within the 9th Circuit on whether to grant such a review, which is relatively rare. If granted, en banc review could delay the case from reaching the U.S. Supreme Court for at least several months, possibly more than a year.

Loyola Law School professor Douglas NeJaime said an en banc panel could reframe the case more broadly. A ruling that grants gays new constitutional rights and affects the entire country is more likely to be overturned by the high court than a narrow decision, he said.

The Feb. 7 decision was written narrowly and limited only to California. It was based on a 1996 U.S. Supreme Court ruling that prevents a majority from taking away a minority’s rights for no legitimate reason.

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-- Maura Dolan

Photo: Protesters rally outside the San Francisco courthouse in June as the Proposition 8 battle was being waged inside. Credit: Justin Sullivan / Getty Images

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