Proposition 8 Proponents to Ask for Full 9th Circuit Rehearing


Keep an eye out for one important development and deadline in the Prop 8 case today.

Prop8Today is the deadline for Proponents to file a petition for an en banc rehearing at the Ninth Circuit. If you recall, an en banc rehearing is a repeat of the latest Ninth Circuit argument before 11 judges instead of 3. If Proponents fail to file, the panel's decision declaring Prop 8 unconstitutional will remain the final word on the matter from the Ninth Circuit. That doesn't mean that Proponents can't go directly to the Supreme Court, if they want.

As for the stay, the stay stays. The first time the stay couldbe lifted is 7 days from today (February 28). That's because the Ninth Circuit said that its official decision will only go into effect 7 days after the deadline for a rehearing petition expires (or 7 days after a rehearing is denied, which would be later). But, since Proponents have 90 days (from the court's February 7 decision) to move for certiorari at the Supreme Court, they can ask for an extension of the stay from the Ninth Circuit or even the Supreme Court. It is likely that either one of them would grant an extension.

UPDATE (received just as this post was published) from MetroWeekly:

"Charles Cooper, the lead attorney for the proponents of Proposition 8, tells Metro Weekly that the proponents of the California marriage amendment will be asking the full U.S. Court of Appeals for the Ninth Circuit to review the three-judge panel decision issued on Feb. 7 holding that Proposition 8 is unconstitutional.

Although Cooper told Metro Weekly the filing has not yet been made, the filing is expected later today…

As a matter of legal and political strategy, the chattering classes are already suggesting this move was inevitable and part of the Prop 8 Proponents' goal of delaying marriage recognition as long as possible even though they know the tide is turning against them. There may be some merit to that, but that view ignores the legal opportunities now open to both sides.

If granted, an en banc rehearing allows the judges of the Ninth Circuit to do precisely what the 3-judge panel just did — affirm or reject Judge Walker's decision declaring Prop 8 unconstitutional. It allows them to pass judgment on the panel's narrow holding that focused on Romer and the taking away of rights already granted. So, the Prop 8 Proponents may think they have only upside from an en banc rehearing: The larger court could deny rehearing or grant and affirm on the same narrow grounds, in which case they are no worse off; the judges could grant rehearing and uphold Prop 8, in which case Proponents come out of the Ninth Circuit winners; or, the judges could grant and overturn Prop 8 on the broader due process and equal protection grounds that Judge Reinhardt left untouched. The Prop 8 Proponents could see that broader holding as a long-game victory because it would give the Supreme Court more room to reverse and uphold Prop 8.

If that counterintuitive strategy is part of Proponents' logic, it is nothing but risky. It assumes a broader holding would be more ripe for rejection at the Supreme Court than the current narrow one (which is not clear to me at all), but seems to discount the likelihood that the Supreme Court, relying on Justice Kennedy's broad holdings, could reject Prop 8 and all marriage bans on due process and equal protection grounds, in general (which could be on the table with a broader Ninth Circuit holding).

We cannot prognosticate at this point. But, we can recognize that the petition for rehearing en banc has only upside for the Prop 8 proponents, and it is not simply a frivolous matter of delay.