Federal Prop 8 Trial | Gay Marriage | News | Proposition 8

Ninth Circuit Announces Filing Tomorrow in Prop 8 Case Likely to Be Decision on 'En Banc' Rehearing

The Ninth Circuit Court of Appeals has posted an alert that it will file a brief tomorrow in Perry v. Brown, the Prop 8 Case:

Prop8KQED's Scott Shafer said this is almost surely the decision on whether to rehear the case en banc. An en banc panel is made up of 11 judges, chosen at random from the circuit.

If the 9th Circuit denies the request, Prop 8 supporters will almost certainly ask the United States Supreme Court to hear the case.

Towleroad's Ari Ezra Waldman wrote back in February, regarding the upcoming decision:

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. While it may not be "simply a frivolous matter of delay" delay is also a possible upside from the proponents' perspective, is it not?

    Posted by: RandySf | Jun 4, 2012 6:36:58 PM

  2. Not sure what you mean. I never heard of a court filing a brief. Parties file briefs, and amici curiae can file briefs.

    Posted by: Boris | Jun 4, 2012 6:58:46 PM

  3. Delay is a big factor. I think the proponents know they won't win in front of the current Supreme Court. They are trying to stall in hopes of a Romney presidency and a quick retirement or death of one of the five judges likely to uphold this ruling.

    Posted by: Ken | Jun 4, 2012 7:04:03 PM

  4. Given how long it took them to render this decision, I will be surprised if they allow an en banc hearing. The delay was likely to allow for a dissent to be written.

    Posted by: Stefan | Jun 4, 2012 7:23:11 PM

  5. I agree with Mr. Waldman's analysis. The proponents had nothing to lose by going the en banc route. What I don't agree with is the idea that THIS Supreme Court is a good place for this case to go to. It is the most political and most conservative Supreme Court since the New Deal. I hope and pray that there is no en banc review and the Supreme Court denies "certiorari,"i.e.,declines to hear the case. There have been no marriages in CA since November 2008 and Prop 8 continues to mar our state constitution. It's long past time for equality.

    Posted by: Lester | Jun 4, 2012 9:50:39 PM

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  8. A question for Ari, or anyone else with the legal expertise. How is this decision made? Do all... however many justices review the case and if enough find enough reason to rehear it goes before the panel? If they refuse, is this seen as an agreement with the three Jude ruling, adding weight when it goes to the SCOTUS, or is refusal purely procedural with nothing read into it?

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