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Appeals court to vote on new hearing in Proposition 8 challenge

December 16, 2009 | 10:42 pm

Judges of the U.S. 9th Circuit Court of Appeals will vote soon on whether to reconsider their decision last week denying gay rights advocates access to internal communications of Proposition 8 supporters who succeeded in getting voters to ban same-sex marriage last year.

In a terse announcement filed this evening, the three judges who denied the access, citing 1st  Amendment grounds, said one of the 27 active judges on the court had called for a vote to rehear the issue with a full 11-member panel of judges.

The call for the rehearing vote could signal dismay by at least one judge on the court at Friday's ruling denying lawyers for two gay couples the chance to review Proposition 8 supporters' campaign-related e-mails and letters. The lawyers want to comb the communications for evidence that the ballot measure was an attempt to sow fear and discrimination against gays and lesbians.

The requested vote could also be an attempt by a judge to delay the scheduled Jan. 11 start of trial in San Francisco on the lawsuit alleging that Proposition 8 violates the constitutional guarantees of equal protection and due process.

The judges asked both sides in the contentious battle over Proposition 8's legality to make their arguments in writing by Dec. 24, suggesting that they hope to decide whether to reconsider the ruling in time to keep to a trial date.

--Carol J. Williams