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.


  1. Anthony says

    @ari what is the make up of the the th circuit court? I mean liberal appointees vs. conservative appointees. What are the odds that they would uphold the ruling that it is unconstitutional?

  2. anony6 says

    Ahhhh, prolonged again! I wonder what advantage does Cooper think he can garner by going en banc. I was under the impression that the full 9th circuit would not be any more likely to rule differently than the 3 judge panel. I imagined that Cooper would want to get this to the supreme court ASAP.

    Looks like the anti-marriage equality forces are just stalling, and reveals they do not have confidence that the supreme court will rule in their favor based on the narrow grounds of the 9th circuit decision. Cooper’s strategy= stall stall stall….and stall.

    Cooper and his ilk should just take solace that the prop 8 trial will likely only affect california, for now that is.

  3. says

    @anthony: the ninth circuit is considered by some to be the most liberal federal appellate court. demoratic appointees (or republicans from liberal areas) usually (though it fluctuates with presidencies) outnumber conservatives almost 2 to 1, so it is more likely than not that the en banc panel will have a liberal majority. but, the make up of the panel does not always follow those proportions. its like a 5 game series in baseball: you can win 160 games during the season, but if you happen to lose 2 in the playoffs, it all mattered not.

  4. says

    @markg: technically, it could, but that seems to be a pretty settled matter at this point. california said proponents could represent the state and for federal standing, only the state has to show particularized harm because proponents are in the shoes of the state (not their own shoes). i was wrong in my earlier analysis of the subject; the panels decision is best (given the ca supreme courts decision, of course, which i still quibble with).

  5. Gianpiero says

    Ari, your clear analysis and explanations make us admirers. Your implication that readers and commenters here are part of the “chattering classes” undercuts that somewhat.

  6. dms says

    Who exactly are these judges? If the request for an en banc hearing is granted, wouldn’t it be pretty easy to predict the outcome (more or less) given that this debate has fallen along party lines and voting history of the judges involved thus far?

    BTW, tt’s kind of amazing that the legal system is so labyrinthian. I guess that’s where all of our tax money is going. Ugh. If the en banc were ethical and pragmatic, they’d pass on hearing this again since the outcome is simply political.

  7. says

    @gianpiero: thank you for reading, for the compliment, and for your comment. however, i made no such connection between you and your fellow readers and the phrase the chattering classes, which is meant as a placeholder for talking heads on tv. i intend no personal affront. i do apologize for being glib, however. its unprofessional.

  8. MM says

    Ari – what is the time frame from here on out? When would the 9th Circuit decide their course of action? Are we talking another year here if they accept re-hearing? Would the attorneys get to re-brief the case? Etc…

  9. Jon says

    So what’s the time frame on the 9th circuit (1) deciding to hear the case and (2) issuing a ruling if heard? Assuming the ruling is the same, when do we find out if the SC will even decide to hear this case?

  10. says

    Isn’t this simply a prolonging of the inevitable?

    Same-sex marriage is pushing forward on so many frotns it seems to me only a matter of time before DOMA is toast.Not tomorrow, not next week but soon.

    Is that wishfulthinking Ari?

  11. says

    @mm: thanks for your question. hard to say exactly. it certainly means that this case would not get to the Supreme Court (if it ever does) until late next term, i.e., winter/spring 2013. motions for en banc rehearings usually take less time than regular decisions, so i would expect a decision on the rehearing within a month, sooner if there are a lot of judges eager to say no. the broader court *could* ask for more briefing, but it need not. assuming it does not ask for more briefs, i would expect a decision about 1-2 months after that, putting us in may or june. cert to the supreme court, if granted, would take us into the winter/spring of 2013 for a hearing.

  12. MiddleoftheRoader says

    A majority of the 28 judges on the 9th Circuit must vote to hear a case en banc. However, after such a majority vote, the case is then assigned to ONLY 11 judges (chosen at random) and these 11 judges will issue the ruling on the merits of the en banc appeal. There is a special rule that allows all 28 judges to hear a case en banc, but as of a few years ago there were NO cases in which all 28 judges actually sat on an en banc appeal. So, although the 9th Circuit is quite liberal, it is possible that a “random” draw of 11 judges might be less (or more) liberal.

    Also, I wish someone would explain why Justice Kennedy will ignore (or how he will distinguish) the concurrence of ex-Justice O’Connor in the Lawrence case in which she said that even though it is irrational to criminalize same-sex conduct on the basis of “moral disapproval”, the situation regarding same-sex marriage is different. In O’Connor’s words: “That this [criminal] law as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review. Texas cannot assert any legitimate state interest here, such as national security or PRESERVING THE TRADITIONAL INSTITUTION OF MARRIAGE. Unlike the moral disapproval of same-sex relations – the asserted state interest in this case – OTHER REASONS EXIST TO PROMOTE THE INSTITUTION OF MARRIAGE beyond mere moral disapproval of an excluded group.”

    Everyone is assuming that Justice Kennedy will be a 5th vote to uphold the 9th Circuit decision, either on the ‘rational basis’ test used by the 9th Circuit or on broader the ‘strict scrutiny’-‘fundamental rights’ test argued by many Prop 8 opponents. But how can we assume that Justice Kennedy won’t take the same view as ex-Justice O’Connor when it comes to same-sex marriage? An intellectual discussion of this point would be welcomed.

  13. SFRowGuy says

    I don’t think the proponents for prop 8 are thinking clearly. If they pursue this to the Supreme Court and the court finds this law unconstitutional, this will in fact make all state laws that ban same-sex marriage unconstitutional, instead of each state deciding for itself. And the Supreme Court has already ruled in the past, that the majority cannot enact laws that deny rights to a minority. And this was one of the key findings by the three judge panel of the Ninth Circuit Court. (Unless this is Prop 8 ‘proponents’ real goal ?!?)

  14. says

    @middle: i dont think anyone is assuming that. i certainly am not, but while i have addressed this point in the past on towleroad, i am more than happy to discuss them at length in a coming post. note first that no one has to distinguish justice oconnors views on this subject: her opinion came in a concurrence that was not required for a majority to exist and she espouses a view that is, partly as a result of her irrelevance to the majority, inconsistent with the majoritys broader conclusion. but, there is more to discuss, indeed. it is a bit esoteric for a general audience, but i will try my best to make it interesting and understandable.

  15. MM says

    @Ari – If the LGBT community loses the referendum in Washington – that would be analogous to the California / Prop 8. A civil right granted to a minority group then taken away by the majority. Correct? Would this 9th Circuit case be the basis for a similar case out of Washington State which I believe is also in the 9th Circuit. (Sorry… corporate lawyer here. I slept thru Con Law !!!)

  16. MikeH says

    My prediction is:
    1. The 9th Circuit will hear the appeal. They don’t want to be seen as not giving the Prop 8 folks more than ample opportunity for their day in court.
    2. We’ll once again hear all the ridiculous falsehoods against Marriage Equality.
    3. The current Reinhardt opinion will be upheld as is… the 9th circuit isn’t going to take the bait and expand the decision.
    4. The Prop 8 folks will appeal to SCOTUS.
    5. SCOTUS will decline to hear the case.

    This will take another year…

  17. MiddleoftheRoader says

    Thanks Ari. I look forward to that. I agree that O’Connor took a different approach than Kennedy in the Lawrence case, but Kennedy didn’t have to (and didn’t) disagree with her — he just offered an alternative analysis that commanded a majority. I agree this is an esoteric issue, but probably a critical one, both politically and intellectually.

    Because O’Connor was ‘generally admired’ (even by Obama), it would give Kennedy some ‘political cover’ if he took a view that was little different from O’Connor’s statement. And intellectually, if Kennedy ultimately accepts O’Connor’s statement that “other reasons exist to promote the institution of marriage”, then it would appear to support the view that there is a rational basis (“other REASONS”) to limit marriage to opposite-sex couples — and thus Judge Reinhardt’s decision that there is no ‘rational basis’ would be overturned. If Reinhardt’s decision is overturned because the O’Connor concurrence was accepted by Kennedy, then there would be either a remand for the 9th Circuit to decide the broader issue, or the Supreme Court could decide the broader issue. And if the Supreme Court decided the broader issue because Kennedy agreed with O’Connor’s statement in Lawrence, then it is really problematic if Kennedy would vote favorably on the broader issue. At least that’s my perspective — but I look forward to your longer posted analysis. (BTW, I don’t believe that O’Connor would — TODAY — necessarily agree with what she wrote in Lawrence).

    As for MM’s comment — the Washington State law won’t go into effect while a referendum is pending, so it’s different from the Prop 8 case. One could make arguments based on Judge Reinhardt’s opinion that the 9th Circuit decision applies to the Washington State situation, or that it does not apply. It’s a crap shoot to know that now.

  18. Sean says

    I’m curious as to the stay. While the Prop 8 proponents could not successfully argue that they personally or those in heterosexual marriages endured any harm from the marriages of gay and lesbian people, the people who are being denied the right to marry are in fact enduring harm. After so many successes declaring Prop 8 unconstitutional, wouldn’t the courts recognize that harm and lift the stay? Why the hesitancy?

  19. BobN says

    Hmmm… I took “chattering classes” as more self effacing than glib…


    Anywho, I think it’s naive to think that the driving issue for the Prop 8 folks is stymieing same-sex marriage in California as long as possible. Their goal, certainly the goal of their funding sources, is the 2012 election. Whatever they do, that’s what they hope to influence.

  20. daftpunkydavid says

    ari — despite your analysis that the standing question is pretty much settled, wouldn’t it be in the prop 8 challengers’ interest to also appeal the 3-judge panel’s decision on standing? it would seem to me that, strategically speaking, since both the standing question and the merits question could lead to the same result, both should be followed, especially if judges don’t want to tackle the merits question.

  21. says

    @daft: they could indeed, but why would they? we won at the ninth circuit and we dont want to delay the execution of the judgment any more than we must. plus, its highly unlikely, given the tight and correct analysis, that standing would be denied. i was an appellate litigator for years and i would advise my client against spending money/time/angering the court by appealing the standing issue.

  22. Josh says

    I’d be willing to testify to the emotional harm being done by the continuing of the stay. Enough is enough, after 2 CA courts agree that Prop 8 infringes on my basic rights. I’m planning a commitment ceremony with my husband (technically domestic partner) for later this year. Every time I hear news about how my right to “wed” is being delayed it is enraging. Living in this time of flux in public rhetoric “we love the gays, we hate the gays”, I have to wonder whether it would have been better to have been born 100 years earlier, with no inkling of marriage equality, just us against the world.

  23. Paul R says

    Using the term chattering class is hardly unprofessional. A critique of it, before you posted, merely means that some people have limited linguistic knowledge.

  24. BZ says

    @MiddleoftheRoader: O’Connor was also voting to reverse her previous position in Bowers when she concurred in Lawrence. I wonder how that might affect the weight given to her remarks. “Preserving the traditional institution of marriage” is asserted to be a rational basis, but just how it is rational is not explained. I interpreted her remarks to be aimed more at Scalia’s dissent, which sniped that Lawrence had opened the way for legalization of SSM.

  25. MarkG says

    I was giving the question of why would they file for en banc instead of going right to the SCOTUS… and the odd thought came to mind that what if they are playing a time game – not to delay ss marriage as long as possible in CA – as the poll numbers seem to be against them on that – but to see if a repube-lican is the next president and one of the older justices retires – Kennedy, Ginsburg, and Bryer and then is replaced with a more conservative judge who would side with them…?

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