Proposition 8 and DOMA Cases: Would It Be More Favorable for One to Reach SCOTUS First?

In some ways, the cases are quite similar. Like the Ninth Circuit in Perry, the First Circuit in Gill did not use heightened scrutiny to declare the underlying law unconstitutional. Both courts used a form of "rational basis plus," or "rational basis with bite," though sometimes not in so many words, to review legislation that affects traditionally disfavored minorities. Perry concerned the rights of gay persons to marry at the state level; Gill concerned what rights those persons get once they are married.

Both appellate courts issued decisions that were far less broad than they could have been. The Ninth Circuit's Perry decision could have declared that Prop 8's denial of marriage rights for gay persons violated equal protection and due process. Instead, the court merely said that a taking away of marriage rights already granted violated the Constitutional precedent set in Romer v. Evans, where another state's voters took away rights from gay persons simply out of animus toward homosexuality. The First Circuit's decision in Gill could have declared DOMA unconstitutional under a heightened scrutiny standard of equal protection review and/or under the Tenth Amendment or the Spending Clause. Instead, the court used a form of rational basis to declare the law unconstitutional and refused to find antigay animus sufficient or even relevant to the ultimate decision.

But, the cases are profoundly different. Perry reaches the heart of individuals' power to wed the man or woman they choose, but Gill concerns those things we get or are entitled to once a state marries us. It is in part for this reason that may gay rights scholars, appellate court advocates, and talking heads think that the best thing for the gay rights movement would be for Gill to reach the Supreme Court before Perry.

After speaking with several scholars, seasoned Supreme Court advocates, attorneys at Lambda Legal, and attorneys at the American Foundation for Equal Rights (AFER), I have gathered some of the reasons for that conventional wisdom. 

1. Gay marriage is more controversial than DOMA.

While many national polls show that an expanding majority of Americans support marriage rights for gay persons, that majority pales in comparison to the majority of registered voters that oppose DOMA. The discrimination inherent in DOMA is evident to many American voters, especially since DOMA does not really touch on marriage rights, perhaps the most controversial political issue on the table today. DOMA is not about marriage; it is about the stuff that comes with marriage. It is a lot harder to argue that we should deny sick spouses health care than to deny a weighted term like "marriage" to people who seem strange to middle America.

2. There are "conservative" and "liberal" avenues to overturning DOMA.

DOMA is uniquely odious to conservative and liberal jurists. To the conservative, DOMA is an example of Congressional overreach: Congress went beyond its specific Article I powers to to intrude upon an area of law exclusively and traditionally reserved to the States. To the liberal, DOMA is an example of obvious discrimination that violates the Constitutional principles of equal protection. It denies similarly situated persons the exact same rights that are freely granted — even, taken for granted — by other persons. Because of this rare confluence of arguments against DOMA from both sides of the legal and political spectrum, Gill has the unique opportunity to bring together conservatives and liberals on the Supreme Court in a strong statement in support of gay persons' quest for honor.

3. The Supreme Court may be less uneasy about overturning an act of Congress than overturning a majority vote of a state population.

Striking down DOMA involves striking down an act of Congress; striking down Prop 8 involves rejecting the more direct will of the people. While both could be considered "judicial activism" in the strictest sense of that overused phrase, judges on a Supreme Court so attuned to how they are viewed in public and how they protect their judicial charge may be less willing to reject the direct voice of the people as opposed to an act of Congress that so many judges and scholars have already rejected as foolish and immature.

4. DOMA is an incremental step toward full marriage rights and full equality, respect, and honor.

The skinny on the great debate inside the gay rights community is that some advocates wanted an incremental approach to securing marriage rights while some others saw an opportunity to achieve the goal through blitzkrieg. Anyone who peddles that simple tale takes you down a rabbit hole fit for Alice herself. The gay community is united in its quest for marriage rights; the question is less about strategy and more about creating the necessary legal precedent to secure victory in that quest. Some think that a favorable decision in a DOMA case would make a favorable decision in Perry easier; others suggest that now that Gill has already rejected heightened scrutiny, there is no reason to delay seeking marriage rights, especially since the Perry decision is exceedingly narrow.

I leave these factors for you to consider. Do you think it would be best for Gill or Perry to reach the Supreme Court first?

***

Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His research focuses on gay rights and the First Amendment. Ari will be writing weekly posts on law and various LGBT issues.

Follow Ari on Twitter at @ariezrawaldman.

Comments

  1. Johnson says

    Anti-equality groups have already announced their plans to file a case in the SCOTUS.

  2. BABH says

    Assuming that both are likely to be granted cert, what difference could it possibly make which comes first? The Justices and their clerks will have both cases in mind, whichever order they are addressed.

  3. Jay says

    Although the decisions are narrowly written, there is no requirement for the Supreme Court to write a narrow decision, regardless of the case they choose to review. In fact, Kennedy in both Romer and Lawrence wrote very expansive decisions.

    It is likely that Kagan will recuse herself from Gill; hence, it may be that we might a 4-4 tie there. That may be a consideration as well.

  4. BABH says

    @Jay: 4-4 would leave the 1st Circuit’s decision in place, effectively a win. Kennedy would still be the casting vote, of course.

  5. beef and fur says

    I think it makes no difference which case makes it there first as each cases asks different questions.

    However, I think Perry will be denied cert and the original ruling will stand in CA / 9th and Gill will be granted cert and upheld to our favor but the answer to the overall question of a universal constitutional right to same sex marriage will continue to be a long way away.

  6. Jay says

    BABH,yes a 4-4 tie would leave the 1st circuit’s decision in place, but the Supreme Court opinion would have limited precedential power. In effect, DOMA would be stricken in the First Circuit: Massachusetts, New Hampshire, Rhode Island, Maine, and Puerto Rico (if I remember correctly), but it would not be declared unconstitutional outside the first circuit. I wish that Kagan would decide not to recuse herself from this case. Whatever discussions she may have had about DOMA when she was Solicitor General hardly means that she was invested in the law.

  7. Rich says

    As a Californian, I am more interested in winning Gill. California does not distinguish between marriage and domestic partnership in the way the state treats these relationships and California will recognize marriages performed in other states, though it will call them domestic partnerships.

    A victory in Gill might well open the range of federal benefits to California couples even if Prop 8 is allowed to stand.

    For me then the tactical question is whether SCOTUS is more likely to affirm Gill before or after it has reviewed Perry.

  8. daftpunkydavid says

    gill: it seems there is a lot to win, and not as much to lose as if perry got granted cert but then reinhardt’s decision was overturned; on the other hand, a perry win would obviously be the motherload of victories… so to be cautious, i’d rather go with gill, as i am risk-averse. it sucks for people in states without equality; but at least they can go to an equality state, get married, and we can try and get the federal government to recognize their marriage regardless of their place of residence.

  9. says

    What an utter joke if Kagan were to recuse herself and Scalia, who has made MANY anti-gay statements in public, did not recuse himelf.

    At some point you have to wonder about the legitimacy of the Supreme Court. I really wish they were limited to a 20-year term, so that we did not have to live with these career judges for generations.

  10. Jorge says

    The first question is whether SCOTUS will grant cert in both cases. I’m not so sure. Two gay marriage cases in one term?

    It pretty much HAS to grant cert in Gill. Not so sure about Perry.

  11. Zlick says

    JAY, I’m not sure DOMA can be declared unconstitutional only in the 1st circuit. It’s federal law. If it’s unconstitutional in Massachusetts, I believe it’s equally unconstitutional anywhere in the U.S. Ari?

    Oh, and I don’t think my personal fun vote for Gill being first to reach SCOTUS means a thing, as I don’t expect SCOTUS to grant cert to Perry.

  12. chris255 says

    I want to go with Prop 8. It ways that once a state grants marriage they can not take it away. DOMA was doomed and the president knows it. That is why the Dems are backing the DOMA replacement known as the RMA. That’s right DOMA is going to be REPLACED – not removed.
    The RMA Respect for marriage act solidifies a state right to hate.
    Prop 8 however pretty much says that once a state has that right, it can not be taken away.

  13. My2Cents says

    SCOTUS is politically influenced to some degree, and I believe that they would prefer to postpone a major decision re marriage equality; I don’t believe Perry will be accepted for review. Because Judge Reinhardt’s decision was so narrowly written, it will be seen to affect only Californians with little potential to change the status quo elsewhere. I can only hope that Gill will be rejected for cert as well, as I believe we need a change of court personnel (via Obama’s re-election) before we can be assured of a fair hearing and success.

  14. says

    Iagree with “My2Cents.” The Prop 8 case affects California only — not laws pertaining to marriage nationwide. The court could quite easily allowing the ruling to stand, and led couples in California marry.

  15. MiddleoftheRoader says

    Despite claims (by some) to the contrary, the Supreme Court is not entirely apolitical. So it is possible they might ‘split the baby’ — accept review in both cases, but then affirm the decision in Gill (so DOMA is unconstitutional as applied to marriages performed in states where such marriages are recognized), and reverse the decision in Perry (so Prop 8 was ‘rational’ because it didn’t affect substantive rights but instead affected ‘terminology’). I’m not saying that I agree with these conclusions, but one can see the Supreme Court reaching these conclusions.

    Unfortunately, Gill and Perry are somewhat at odds — particularly on the ‘animus’ point: the 9th Circuit found that ‘animus’ motivated Prop 8 and as a result Prop 8 must fall, but the 1st Circuit found that there was NO ‘animus’ when Congress decided not to recognize same-sex marriages for federal law purposes. If the Supreme Court takes both cases, it would have to resolve a lot of issues regarding ‘animus’, and I can’t see Justice Kennedy finding that there was ‘animus'; he is not someone who generally likes to accuse others, especially government officials, of intentional wrongdoing, hatred or bad faith.

    On another political note, the 1st Circuit decision was unanimously decided by both Republican and Democratic judges; and District Judge Tauro, who issued the trial decision, was a strong Republican. In contrast, the 9th Circuit has a reputation as a liberal, Democratic bastion.

    On timing, the losers in Gill might also be able to ask for rehearing en banc, which could hold up Gill for Supreme Court review.

    On one of the more interesting aspects of all of this, especially Gill: if a married same-sex couple (or the survivor of a same-sex marriage) now lives in NH and is entitled to benefits under Gill , what happens if the couple (or survivor) moves to Virginia or Oklahoma after several years? Can the federal government suddenly say that the marriage is no longer recognized in the new state of residence, so benefits are being cut off?

    On a technical issue, I think both cases would be “appealed” to the Supreme Court on the basis of presenting a federal question, and they would not be the subject of “certiorari” petitions.

  16. Peater says

    Ari’s article seems to suggest that DOMA is more likely to win in SCOTUS, but that doesn’t necessarily mean it should be the first to go before SCOTUS. For example, if SCOTUS says PROP 8 is unconstitutinal, perhaps only suggesting gays have a right to marriage, it seems to me to be a heck of a lot harder to LATER say the Feds do not have to treat married people equally. On the other hand, if SCOTUS agrees DOMA is unconstitutional first, there’s the possibility of a mentality of “we gave them DOMA so now we can punt on Prop 8″, i.e, we agree once a state marries same sex couples the Feds must comply, but that’s not the same as saying the constitution requires CA or any other state to let same sex couples marry.

  17. Bingo says

    I don’t see how this presentation raises the question of which should be decided first. It’s pretty clear that having both cases on the docket will allow the Supremes to split the difference and uphold Gill while overturning Perry. Doesn’t matter which comes first. Win one, lose one.

  18. Lymis says

    A favorable ruling in Gill would also go a long way toward making Perry functionally irrelevant, possibly even legally irrelevant.

    One of the arguments against marriage equality that seems to carry the most weight with the electorate is the idea that gay couples in domestic partnerships or civil unions already have all the benefits of marriage – and with DOMA in place, while it’s not true, it’s hard to explain why in simple terms. Even in states without civil unions, the argument is often made that gay couples can achieve the same results with a few basic legal papers, like wills and powers of attorney.

    Once DOMA section 3 falls, that logic is out the window, and civil unions are demonstrably and dramatically inferior to marriage. Unless there is a federal civil union bill that confers all the benefits of marriage, marriage is the only way to confer the vast majority of marital rights.

    Public opinion is rapidly going to be forced into an all or nothing approach – marriage or nothing, since civil unions will be clearly seen as second class citizenship.

    It may even make Perry immaterial – since the state Supreme Court only let Prop 8 stand because no actual rights were involved and therefore with some legal origami, they were able to claim that denying marriage denied no rights and therefore didn’t violate equal protection – once DOMA falls, that same ruling that allowed Prop 8 to stand would demand its removal, and on top of that, the impetus to repeal it would rise enormously, just as in any other civil unions state.

    Perry, especially interpreted narrowly, doesn’t do anything like that.

    I think the real legacy of Perry will not be the eventual ruling, but the brilliance of the case and testimony itself, and the legal precedent it sets for arguing the same case in every other state. Whether it actually applies only to California or to the whole US, the court record will effect every other state, because it’s pretty much unassailable and portable.

  19. Fodolodo says

    At this point, it makes little difference. Gill was decided last week; rehearing was denied in Perry today. Since there is no point to BLAG seeking rehearing in Gill, that puts their schedules fairly close together. If the Supreme Court grants both, they will be heard and decided at around the same time; given the similarity of the issues, it’s quite possible the opinions would even be released the same day. I expect, then, that the ruling in Perry will be made in the context of Gill, and the ruling in Gill will be made in the context of Perry; the order will not make a difference.

  20. Jay says

    Middleoftheroader: I think you are mistaken about a number of points. You are right that the question of animus is significant in these decisions, and that the Gill appellate decision in effect reversed Judge Tauro on the question of animus, while the question of animus is at the very heart of Judge Reinhardt’s decision in Perry. But you are wrong to think that Justice Kennedy is somehow adverse to the notion of animus. After all, that is the very basis of Romer, which he wrote and which Judge Reinhardt echoes very closely.

  21. Bingo says

    To MIDDKEOFTHEROADER

    RE: 1st Circuit found that there was NO ‘animus’

    Not quite. The decision said that you couldn’t use a handful of hateful statements to prove that anti-gay animus was the *sole* rationale.

    You are correct that this same analysis would allow Prop 8 to stand, but only if SCOTUS finds some non-hate-based rationale for Prop. 8, and tradition doesn’t cut it, but they’ll invent a way.

  22. Jay says

    Also MiddleoftheRoader: the Gill opponents cannot ask for an en banc rehearing. The Gill decision was a unanimous decision from a three-judge panel. There are only 6 judges in the first circuit. So there is no way an en banc hearing would be granted. Even if all three of the judges who were not on the panel voted in favor of an en banc hearing, a 3-3 vote would deny it. So they will not ask for an en banc hearing. They will file for cert with the Supreme Court, which will grant it.

  23. Matt N says

    “So it is possible they might ‘split the baby’ — accept review in both cases, but then affirm the decision in Gill (so DOMA is unconstitutional as applied to marriages performed in states where such marriages are recognized), and reverse the decision in Perry (so Prop 8 was ‘rational’ because it didn’t affect substantive rights but instead affected ‘terminology’)”

    Except, if they ‘split the baby’, then suddenly the word ‘marriage’ in California does have substantive *federal* rights, which would be denied to Californian same-sex couples who are unable to marry or have a marriage recognized in California (even though they are able to get a domestic partnership that gives all *state* marital rights)

    Now, if SCOTUS says that any couple in a relationship that a state recognizes as “substantially equivalent to marriage” is entitled to martial federal benefits, then your position would work.

  24. Bingo says

    Matt, absolutely right except for your last paragraph. No one is asking SCOTUS to say anything like that in Gill. And they’re not just going to up and say it.

    A victory in Gill gives a whole new set of arguments to cases that complain that civil unions that are supposedly equivalent to marriage are not, like NJ, IL, NV.

  25. Matt N says

    I agree, Bingo. I’m not saying it’s going to happen in these cases.

    I was mostly trying to emphasize the unlikelihood of Perry being rejected on the basis of it not affecting any substantive rights, if Gill is affirmed. There would be a contradiction there, unless some very likely ruling came down that said, for federal purposes, domestic partnerships/civil unions are equivalent to marriage.

  26. Paul says

    “Once DOMA section 3 falls, that logic is out the window, and civil unions are demonstrably and dramatically inferior to marriage. Unless there is a federal civil union bill that confers all the benefits of marriage, marriage is the only way to confer the vast majority of marital rights.”

    Exactly. The California Supreme Court indicated as much.

  27. Fodolodo says

    CPT_DOOM: No. They present distinct, though related, legal issues. The Supreme Court could uphold Prop. 8 and strike down DOMA. Given the narrowness of the panel ruling in Perry, it could even strike down Prop. 8 and uphold DOMA, but I think that’s pretty unlikely.

  28. Jonny says

    Did I miss the discussion of the timeline? Is there a limit to how long the SCOTUS can consider hearing? In the case of Perry, is that the 90-day stay?
    Thanks. I’m a little confused by the years of back and forth.

  29. Bingo says

    I understand you now, Matt.

    This discussion has made me realize the importance of Gill to a wide range of other cases. If Gill is affirmed, states that withhold the name “marriage” from same-sex couples are withholding myriad federal rights from them. It’s not just a semantics, Governor Christie.

  30. Mark says

    One issue not raised is whether Massachusetts will appeal its case that it lost to the Supreme Court. I wonder if some of the attorneys here would speak to that? At the top level, its states’ rights claim may have more appeal than the Gill decision.

  31. Tony says

    I’m more inclined to the view that the Gill case should go first. If the SCOTUS upholds that decision, that’s one more powerful precedent, in a chain of them (Lawrence, Romer, etc), that narrows even further the legal and logical territory that gay rights opponents’ occupy. And I find Bill Keller’s interesting analysis (NYT, May 27) of why Justice Kennedy might have trouble affirming Perry broadly (despite having written the majority opinions in Lawrence and Romer) pretty convincing. If Gill is affirmed first, it seems to me that gives Justice Kennedy additional support in ruling in favor of Perry when the time comes.

  32. miguel says

    i would prefer if SCOTUS took up Gill, declared ‘DOMA’ unconstitutional and passed on Perry, leaving the ‘Proposition 8′ ruling to go into effect for California; while a stronger and broader case is eventually worked to the Supreme Court to eventually overturn ALL state amendments.

  33. Mark says

    The Commonwealth of Massachusetts did lose, but Gill won. There were two cases there.

  34. NullNaught says

    Thank you Ari for your analysis. I have in the past let my emotion get away from me and I insulted you. I am terribly sorry. It was bubble-headed of me to confuse my emotional wishes with reasoning of any sort, let alone legal reasoning. I have no familiarity with law books even remotely. I appreciate deeply you contributing your expertise to the staff of Towleroad.
    Thank you everybody for your analysis. You all know more about this than I do and I learned a lot by not contributing for the most part, but shutting up and listening for a change.
    If I understood this like I think I do after reading everything carefully. I think I agree with MattN.
    I am sorry I can’t contribute anything more valueable than that. I would be an a$$ to try, however.
    I love Towleroad and its contributing audience. You all enhance my life.

  35. Matt N says

    I’m wondering if anyone has comments on this…

    Based on Scalia’s dissent in Lawrence (see below), I’m wondering how he could possibly not vote to uphold the Prop8 ruling? It seems like he would plainly be disregarding SCOTUS precedent:

    “If moral disapprobation of homosexual conduct is ‘no legitimate state interest’ for purposes of proscribing that conduct…what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising ‘the liberty protected by the Constitution’?”

    Since SCOTUS ruled that moral disapproval alone is insufficient, how could Scalia possibly rule against us in any same-sex marriage case?

  36. Ken says

    Massachusetts and Gil both won, they were the plaintiffs. The Federal government is the is the defendant and will be the ones to appeal.

  37. Rob says

    Kagan has recused herself on a lot- I think she’ll let this one slide. Everyone can tell she’s gay and the brethren will quietly assent to her hearing the case by not making a fuss. Go Elena, bring home a win!

  38. Tony says

    RE: MattN’s comment from last night:
    Scalia wrote that as an outraged protest, not as a personal assent to the outcome he describes. Scalia, Alito and Thomas have had absolutely no compunction in totally disregarding precedent if it conflicts with their reactionary prejudices.

  39. MiddleoftheRoader says

    Good thread of discussion above. Let’s keep it going.

    1) I don’t think either Gill or Perry would come to the Supreme Court by way of a “petition” for certiorari. Because both cases decided that a law (DOMA= federal law, Prop 8 = state law) was unconstitutional under the US constitution, the proper method to take these cases to the Supreme Court would be via “appeal” — which is different from “certiorari”. Although this seems very technical to non-lawyers, the Supreme Court would have to accept the two cases unless it issued a statement that the appeal in one (or both of them) was being dismissed for “lack of a substantial federal question”.

    2) I believe it is possible for the 1st Circuit to grant rehearing en banc, even though the Gill decision was unanimous. If any party to the case files a petition for rehearing en banc, it is permissible for any (or all) of the 3 judges who decided Gill to vote — along with other judges on the 1st Circuit — to hear the case en banc. Check out Local Rule 35 of the 1st Circuit rules. It is extremely rare for the 1st Circuit to grant rehearing en banc, but its rules specifically say it might do so if a case presents a “question of exceptional importance”.

    3) As for who could appeal (or ask for a rehearing en banc) in the Gill case, please keep in mind that the (US House of Representatives) “Bipartisan Legal Advisory Group” (BLAG) was given specific status by the court as a “party” to the appeal — i.e., an “intervenor”, not just amicus curiae. This is similar to the issue in Perry of whether the Prop 8 initiators, who intervened in the Perry case, had “standing” to appeal from the trial court to the 9th Circuit. The bottom line here is that BLAG (controlled by House Republicans) might well appeal the Gill decision — and maybe (though unlikely) ask for rehearing en banc by the 1st Circuit if they really wanted to stall an appeal to the Supreme Court.

    4) I agree with the posters who wrote that if the Supreme Court upholds Gill (and then rejects an appeal of Perry, or upholds Prop 8 in Perry), this leaves open the question of what “federal rights” exist for same-sex couples in civil unions or domestic partnerships. That, of course, is a critical question. But unless Congress (or even less likely, the Supreme Court) is going to decide what types of civil unions or domestic partnerships are the equivalent of ‘marriage’, this question will probably not be answered for a long time. Although California’s domestic partnership law specifically gives same=sex domestic partners the same state legal rights as married spouses (except for use of the term ‘marriage’), not every state that recognizes civil unions or domestic partnerships equates them to ‘marriage’. I can’t see the Supreme Court trying to figure out which state laws on civil unions and domestic partnerships are really the same as marriage — unless the state law specifically says so.

    5) I just don’t see Justice Kennedy finding that “animus” is what motivated DOMA — not even the 1st Circuit was willing to reach that conclusion. Justice Kennedy’s opinion in Romer, regarding animus, was based on the extraordinary breadth of the Colorado law that denied virtually ANY protections to gay people. He said: “The amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group, an exceptional and, as we shall explain, invalid form of legislation. Second, its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects.” While denying same-sex couples the right to marry is extremely serious and broad in its effect, it does not come close to the unprecedented breadth of the Colorado law in Romer. Yes, Justice Kennedy might nonetheless find ‘animus’ is behind DOMA, but I don’t think so.

    6) I would not make too much of Justice Kennedy’s opinion in Lawrence v Texas in regard to the “animus” argument. Remember, Lawrence was a case where private, adult, consensual same-sex conduct was a CRIME, and Justice Kennedy found that denied due process to gay people. In contrast, if you need a roadmap as to how Justice Kennedy might view same-sex marriage, here is what Justice O’Connor’s concurring opinion said in the Lawrence case: “That this [Texas]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.” I’m not saying that Justice Kennedy would follow Justice O’Connor’s views, but he could certainly do so (ironically, my guess is that Justice O’Connor probably has changed her mind by now and, more likely than Justice Kennedy, she would find a right to same-sex marriage if she was still on the Court).

    Let’s keep this thread going!

  40. NVAgBoi says

    Ari, I’m really sorry to nit pick, but whoever (or whatever source) told you that « en banc » can be translated into English as “on [a] bench” was a bit addled linguistically. In French « en banc » is only ever used to indicate the meaning of “something within its totality” and can never be literally translated….and if one did, it would be “in bench”. Ok, now that I have satisfied that crazy pet peeve of mine…