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.