Arguments about the constitutionality of California’s voter-approved ban on gay marriages will not be reheard after the motion failed to secure enough support among judges.

In February of this year, the Ninth US Circuit Court of Appeals had decided 2-1 to uphold the decision by Judge Vaughn Walker that Proposition 8 violated due process and equal protection clauses of the US constitution.

A challenge had aimed to have the appeals court’s decision examined again by a panel of 11 judges before any supreme court hearing.

If the en banc hearing had gone ahead, it would have delayed the final decision on Proposition 8 by a year. However, the requisite 13 of the court’s 25 active judges could not be found to support the motion to rehear the case, clearing the way for an appeal to the US Supreme Court.

Evan Wolfson, founder and President of Freedom to Marry said yesterday’s decision “brings committed same-sex couples in California one step closer to being able to marry”.

He added: “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.”

The announcement is the latest of many decisions regarding marriage equality and the courts in California. In May 2008, the state’s supreme court had ruled that Proposition 22 passed in 2000 and other statutes that limited marriage as being between a man and a woman violated the equal protection clause of the state constitution.

By June of 2008, the ballot measure Proposition 8, designed to overturn the ruling, had received 1.12 million signatures in support. On the same day as Barack Obama was elected, just over seven million Californians voted in favour of banning same sex marriage, compared to six and a half million voting to retain it. 

During the time that gay couples were allows to marry, more than 18,000 did so. In 2010, following a lengthy public trial, Judge Vaughn Walker ruled that the voter-initiated Proposition 8 was unconstitutional.

Judge Walker ruled that the measure violated the equal protection clause in the United States constitution by revoking the right of gays and lesbians to marry a member of the same sex.

Until a Supreme Court decision, which could be made next year, the ban on gay marriages in California effectively remains in force as a result of stayed rulings.