Ari Ezra Waldman | Law - Gay, LGBT | News | Proposition 8

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.

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  1. @Sean -- I'd also love some discussion of that. Thanks for asking the question.

    Posted by: me | Feb 21, 2012 3:57:41 PM

  2. @sean: unfortunately, that is not the standard used to determine whether a stay should be lifted. since there is interest, though, expect a future column to address stayness or stayation, if you will.

    Posted by: Ari Ezra Waldman | Feb 21, 2012 4:06:28 PM

  3. 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.

    Posted by: daftpunkydavid | Feb 21, 2012 4:08:29 PM

  4. @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.

    Posted by: Ari Ezra Waldman | Feb 21, 2012 4:23:14 PM

  5. I see this coming down to them asking for extended lunch recesses just to delay the inevitable one hour at a time.

    Posted by: Spudger | Feb 21, 2012 5:11:55 PM

  6. 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.

    Posted by: Josh | Feb 21, 2012 11:41:43 PM

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

    Posted by: Paul R | Feb 22, 2012 8:29:32 AM

  8. @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.

    Posted by: BZ | Feb 22, 2012 9:49:18 AM

  9. Reinhold's opinion won't stand. His reasoning is as tortured as Ari's prose.

    Posted by: Bingo | Feb 22, 2012 1:30:13 PM

  10. 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...?

    Posted by: MarkG | Feb 22, 2012 2:40:34 PM

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