The Ninth Circuit Court of Appeals has denied Prop 8 supporters’ effort to have a larger panel of appellate justices rehear the case.

The denial potentially keys the case up for the Supreme Court to decide whether to take the case.

In January, the Ninth Circuit declared Proposition 8 unconstitutional, in a 2-1 vote of an appellate panel.

Adam Umhoefer, executive director of the American Foundation for Equal Rights, which is challenging Prop 8, said in a statement, “AFER’s federal constitutional challenge to Proposition 8 is now entering its final stage. The Ninth Circuit Court of Appeals decided today it will not rehear our case. Now, there are only two things that could happen: Couples start getting married again in California; or our case for marriage equality goes to the U.S. Supreme Court.”

Judge Diarmuid Fionntain O’Scannlain dissented. He wrote, “A few weeks ago, subsequent to oral argument in this case, the President of the United States ignited a media firestorm by announcing that he supports same-sex marriage as a policy matter. Drawing less attention, however, were his comments that the Constitution left this matter to the States and that “one of the things that [he]’d like to see is–that [the] conversation continue in a respectful way.”

“Today our court has silenced any such respectful conversation. Based on a two-judge majority’s gross misapplication of Romer v. Evans, 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. Even worse, we have overruled the will of seven million California Proposition 8 voters based on a reading of Romer that would be unrecognizable to the Justices who joined it, to those who dissented from it, and to the judges from sister circuits who have since interpreted it.”

Judge Stephen Reinhardt and Judge Michael Daly Hawkins replied with a concurrence, emphasizing that the case should not be about whether the constitution guarantees a right to same-sex marriage, but a question on narrower grounds.

They wrote, “We are puzzled by our dissenting colleagues’ unusual reliance on the President’s views regarding the Constitution, especially as the President did not discuss the narrow issue that we decided in our opinion. We held only that under the particular circumstances relating to California’s Proposition 8, that measure was invalid. In line with the rules governing judicial resolution of constitutional issues, we did not resolve the fundamental question that both sides asked us to: whether the Constitution prohibits the states from banning same-sex marriage. That question may be decided in the near future, but if so, it should be in some other case, at some other time.”

Update: Supporters of Proposition 8 say they will petition the Supreme Court to hear the case.

Brian Raum, senior counsel of the Alliance Defense Fund, said that the “Protectmarriage.com legal team looks forward to standing before the U.S. Supreme Court on behalf of the people’s right to preserve the fundamental building block of civilization, especially since the dissent accompanying today’s decision strongly supports our arguments. The democratic process and the most important human institution–marriage–shouldn’t be overthrown based on the demands of Hollywood activists.”

Rob Reiner, his wife Michele and his then-political consultants, Chad Griffin and Kristina Schake, spearheaded the legal effort to challenge Proposition 8, enlisting Ted Olson and David Boies to lead the lawsuit. The seed money for the effort came from David Geffen and Steve Bing, and other show biz donors followed.

Charles Cooper, lead attorney for supporters of Prop 8, said, “We’re pleased to petition the Court to hear this case. The lower court opinions were little more than an attack on the character and judgment of millions of Californians, and those decisions essentially ignored all relevant Supreme Court and appellate court precedent. We are hopeful and confident that the Supreme Court will review the 9th Circuit’s decision.”

The question now is whether the Prop 8 case — Perry vs. Brown — makes it to the Supreme Court before the challenge to the Defense of Marriage Act. Last week, a federal appeals court in Boston declared the law unconstitutional. There also will be attention on President Obama and whether the federal government weighs in with an amicus brief in either case.

Same-sex marriages will not resume in California pending the Supreme Court’s decision on whether to take the case. If they do, it is expected that they will issue a stay pedning their review. If they do not, the Ninth Circuit decision stands, and counties can once again issue marriage licenses, although only in the state.