Prop 8 Proponents Ask for Re-hearing in Ninth Circuit

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Prop 8 Proponents Ask for Re-hearing in Ninth Circuit
By: David Dayen Tuesday February 21, 2012 1:01 pm	Tweet6

This is a bit of a surprise. In a move that buys time before the ultimate reckoning from the Supreme Court, the proponents of Proposition 8 asked for an en banc re-hearing of their case before the full Ninth Circuit. This will add a step to the legal outcome of Prop 8, which a three-judge panel on the Ninth Circuit just ruled in violation of federal law.

After the ruling came out earlier this month, a press release from the proponents appeared to indicate that they would take the case to the Supreme Court. But the move to call for an en banc panel would delay that result by up to a year. We’re not likely to see a Supreme Court ruling now until 2014.

Clearly the proponents think the ultimate result will lie with the Supreme Court. So why go for an en banc panel? I don’t think the proponents believe that the generally liberal Ninth Circuit will give a favorable result on a second hearing. And the first result was arguably favorable, because it limited the applicability of the ruling to just Prop 8 in California, and not marriage equality generally. The only thing I can think of is that they might need more time to raise funds to mount a defense. Otherwise it’s a bit puzzling. Or, they’re just delaying the inevitable to deny same-sex couples in the state the rights of heterosexual couples a bit longer.

Anyway, justice will be denied for a couple more years, it looks like.

13 Comments

13 Responses to “Prop 8 Proponents Ask for Re-hearing in Ninth Circuit”

marblex February 21st, 2012 at 3:44 pm

I think they understand their chances at SCOTUS are thin, unless SCOTUS rules that the 9th Cir. misread/misapplied Roemer. I think it is extremely unlikely that the high court can find fault with the 9th’s analysis. It appears legal advisers to prop hate proponents realize that their best shot is to get the entire bench together, hoping either for a reversal, a draw, or at least some strong dissent to work with.

Pathfinder February 21st, 2012 at 3:52 pm

Not to be too cynical here, but I think they are trying to stack the SCOTUS. They are weighing the odds that there will be a new Justice coming in before they have to try the case upstream, and of course hoping that the POTUS who picks that new Justice is not Obama. If they can win in November, get an R in the White House, then they can fix the case in 2 years when it finally makes it to the top.

onitgoes February 21st, 2012 at 4:01 pm

Thanks for the update on this. I always figured that this would be the next course of action. Anything to waste everyone’s time & dime. Coming to you from all these “smaller govt” types… except when it comes to what you do in the privacy of your home between consenting adults.

KrisAinTX February 21st, 2012 at 4:05 pm

Any possibility that the en banc panel will refuse to hear the appeal?

DWBartoo February 21st, 2012 at 4:10 pm

In response to Pathfinder @ 2

The h8ters think Kennedy is gonna shuffle off, do they?

Methinks he intends to be there to see that marriage equality becomes the law of the land.

Vaughn Walker laid out the groundwork impeccably well, just like Kennedy likes it, Pathfinder, and the rest of the nation, two more states on board and one held back by Christie, is moving forward, not merely “looking” that way.

Change IS coming.

It may be a bit delayed, however it will NOT be denied.

The h8ters and those who favor the “incremental”, “wait ’til the county is ready”, as bmaz puts it, are not controlling the momentum any longer, they are merely stalling things for as long as they can.

Teddy Partridge February 21st, 2012 at 4:26 pm

I could be wrong, IANAL, but I think they’ve added a step. The Ninth Circuit has added a mini-enbanc step where 11 judges review the case. Then the losers can appeal to the full Circuit Court (20?) judges. From Chris Geidner at Metro Weekly:

Usually, *en banc* review involves all of the active judges on the court,
but the Ninth Circuit — due to the more than 20 active judges on the
circuit — has adopted a unique “limited *en banc*” procedure in which all
the active Ninth Circuit judges vote whether *en banc* consideration will
be given. That will be the request made by today’s filing.

If a majority of the court supports *en banc* consideration, then the chief
judge of the circuit, Judge Alex Kozinski, and 10 randomly selected
appellate judges from the circuit will hear the *en banc* appeal, which can
involve briefing and oral arguments.

After that decision is reached, theoretically, a party dissatisfied with an
*en banc* ruling of the Ninth Circuit can ask for the full Ninth Circuit to
review the *en banc* panel’s decision, but the court has not agreed to do
so since adopting the “limited *en banc*” procedure.

After *en banc* consideration or in lieu of even attempting it, the
unsuccessful party can petition the U.S. Supreme Court to hear the case.

Margaret February 21st, 2012 at 4:51 pm

For people like that, any delay in equality is a “victory”.

tsuki February 21st, 2012 at 5:36 pm

Sounds like they think Santorum will be pres, and have appointed a couple of supremes.

Phenobarbarella February 21st, 2012 at 6:12 pm

Sounds to me like they think there’s at least a decent chance that they’ll get a GOP POTUS this fall, meaning they can get a more-favorable outcome from the Supremes.

Pathfinder February 21st, 2012 at 6:29 pm

In response to DWBartoo @ 5

Nope, I don’t think it will be Kennedy who would leave, but I do worry about Ginsburg. I do think that Walker has this wrapped up in a very nice package, but frankly, I don’t trust the outcome of anything any more.

I absolutely believe that change will happen, and it is certainly due – I live in Vermont and the sky has not fallen since we passed our civil union and then marriage laws.

Laura G February 21st, 2012 at 7:19 pm

It’s not a surprise. This gives them a possible 2 chances. There is no guarantee that SCOTUS will even take up the case, so asking for an en banc from the 9th Circuit is a wise choice.

KC February 21st, 2012 at 8:25 pm

DWBartoo makes a good point. Maybe they’re counting on winning the next presidency/SCt appointment. However, there is a totally separate motive for the Prop8 lawyers to convince their clients to extend litigation: attorney’s fees.

Oh and Pathfinder is right about Ginsburg. She could have a resurgence at any time: http://blogs.wsj.com/health/2009/02/05/understanding-justice-ginsburgs-pancreatic-cancer/

DWBartoo February 22nd, 2012 at 3:55 am

In response to Pathfinder @ 10

I share your concerns about Ginsburg, Pathfinder. However, after Kagan’s recent performance regarding Miranda, I consider it just as likely that Obama will appoint another reactionary, authoritarian “judge”, essentially “intellectual” cyphers, who have, deliberately, like Kagan, no meaningful history or “record” of actual significant legal “practice” behind them.

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