Ninth Circuit Denies 'En Banc' Rehearing of Prop 8 Case, Clearing Way for Potential Supreme Court Hearing


The 9th Circuit Court of Appeals has denied request by Prop 8 proponents for an en banc rehearing of the case.

Reuters reports:

Supporters of the 2008 ban, Proposition 8, have lost two rounds in federal court but have made clear they will appeal to the U.S. Supreme Court and hope for a favorable response from the conservative-leaning court.

The top U.S. court could agree to hear the matter in the session beginning in October, putting it on track to decide the case within a year. It could also decline to review Prop 8.

The ruling:

A majority of the panel has voted to deny the petition for rehearing en banc. Judge N.R. Smith would grant the petition.

The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the non-recused active judges in favor of en banc consideration. Fed. R. App. P. 35. The petition for rehearing en banc is DENIED.

The mandate is stayed for ninety days pending the filing of a petition for writ of certiorari in the Supreme Court. If such a petition is filed, the stay shall continue until final disposition by the Supreme Court.

Writes AFER:

Today marks a monumental turning point in our case for equality. AFER’s federal constitutional challenge to Proposition 8 is now entering its final stage. The Ninth Circuit Court of Appeals decided today it will not rehear our case. Now, there are only two things that could happen:

Couples start getting married again in California; or Our case for marriage equality goes to the U.S. Supreme Court.

Towleroad's legal expert Ari Ezra Waldman will have analysis coming up in the next couple hours - STAY TUNED....

PDF of the ruling, AFTER THE JUMP...

1016696 Ebo Final

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  1. To be exact, however, marriage equality itself would not go to SCOTUS, but the narrow question involving the ability of a state to strip rights like marriage from citizens after they've been granted. If SCOTUS takes the case, which they likely will not, they are compelled to answer the narrowest question possible.

    So, marriage equality will not come from Perry, but marriage in California may become legal again as soon as the beginning of the October term, when SCOTUS will likely respond to the appellants' cert petition.

    Posted by: Mike8787 | Jun 5, 2012 1:03:50 PM

  2. Mike8787 I do hope you are correct, but I suspect the S.C. will see this issue as very important and want to take it. Again I will sacrifice a virgin (yeah like any one can find one these days, and the PRICE when you do OY!) to give your words power and magic (the pink kind).

    Posted by: Sargon Bighorn | Jun 5, 2012 1:11:25 PM

  3. I'm nervous as F*CK about SCOTUS because of the conservative majority. Let's stop collectively pretending each will judge based on the law rather than the partisan divide that is this country's political framework. In simpler terms, the conservative judges, I honestly feel, will vote in favor of Prop 8 no matter what, and the liberal judges vice versa...the majority will win, and we'll be royally f*cked.

    Posted by: Leo | Jun 5, 2012 1:13:56 PM

  4. There are so many cases heading to the Supreme Court. Has this ever happened before? Surely SCOTUS can see that gay civil rights are coming to a head in the country and that there needs to be a definitive ruling?

    Posted by: Dan | Jun 5, 2012 1:20:16 PM

  5. Leo -- Perry's Court of Appeals holding was drafted in a way specifically to appeal to Justice Kennedy, who is the "swing vote" on the court between the conservative and liberal wings. To be exact, the holding was written framing the question around Romer, a holding that Kennedy himself wrote. This strategy effectively challenges Kennedy to uphold the ruling, appear to contradict himself by rejecting the logic and caselaw he relied upon in drafting Romer, or, in sensing he'd like to do the latter, to work hard to deny cert. It is extreme luck that we were able to get a judge on the 9th Circuit who not only took our side, but drafted an opinion that could not put us in a better position going toward SCOTUS.

    So, it is up in the air. I personally think all of the eight other judges will be so uncertain which way Kennedy will fall -- and find their desired outcome so important -- that they will vote to deny cert. It's too much of a risk for them, given how the 9th Circuit's holding was drafted.

    Posted by: Mike8787 | Jun 5, 2012 1:21:58 PM

  6. @LEO: Honestly, I'm not as nervous about this case now that the Appellate Court's opinion is the one being appealed, and not Judge Walker's. Don't get me wrong...I agree with everything Walker said in his opinion, but I don't think five Justices would have. Now, however, I really think Justice Kennedy will provide the swing vote to bring marriage equality back to California, consistent with the opinion he wrote in Romer. Sucks for the rest of the country, but it does bring us closer to a tipping point.

    Posted by: Chris S. | Jun 5, 2012 1:22:37 PM

  7. I don't see the SCOTUS taking the case. The arguments and decisions have been consistent, whereas they usually take cases where the courts have differing rulings.

    Posted by: Dale | Jun 5, 2012 1:24:13 PM

  8. The Appeals Court ruling was specifically crafted to give SCOTUS a reasonable excuse not to hear the Perry case. I think they will take that avenue of escape. The DOMA cases are irrevocably headed their way, and are the far more pressing and important cases regarding marriage equality. My happy prediction: The denial to hear the Perry case will mean an instant return to marriage equality in California ... and their positive (almost inescapable) ruling in the DOMA cases will force federal recognition of those marriages - and of every other marriage in states with equal marriage rights. Yay. Mark my words. ;-)

    Posted by: Zlick | Jun 5, 2012 1:25:30 PM

  9. I agree with Mike 8787, the SCOTUS is unlikely to hear the Prop 8 case. Doesn't mean they won't accept it, but probably not. That's good news for our side.

    Posted by: Howard | Jun 5, 2012 1:26:00 PM

  10. If the largest state of the union goes for marriage equality then the balance will be tipped dramatically - probably irreversibly - in our favor. It won't end here, but if we have New York AND California it's going to be hard for us to lose the battle.

    Posted by: Jesrad | Jun 5, 2012 1:32:26 PM

  11. The more interesting part of this ruling is the dissent and the response to the dissent. Some major 9th Circuit cat fight going on!

    Posted by: JPinWeHo | Jun 5, 2012 1:39:02 PM

  12. The argument that the court might not take the case because neither the liberals nor the conservatives know where Kennedy is sounds plausible. Not sure if it's enough, though; the conservatives might be so angry that they roll the dice. I bet they lose.

    As to Mike's first comment, that's not technically true. The Court can affirm or reverse the judgment below for any reasons. And the reasons determine the precedent and what happens in other states. Also, "judgment below" is not the reasoning of the Ninth Circuit but it's ultimate ruling--affirming Walker's judgment. And Walker's judgment was that Prop8 is unconstitutional. So any reasons relevant to whether prop8 is unconstitutional are fair game in this appeal. And rest assured, Boies/Olson will be asking the Court to adopt Walker's reasoning (relying on the Ninth Circuit's reasoning only as a just-in-case-you-disagree fallback).

    Posted by: Tyler | Jun 5, 2012 1:41:57 PM

  13. I really hope the US Supreme Court does not grant cert to hear this. It would be premature for our side if they did.

    Posted by: Luke | Jun 5, 2012 1:47:50 PM

  14. How long are we talking in the worst case until we have the final result. And In the best case?

    Posted by: pal | Jun 5, 2012 1:48:16 PM

  15. The Court may pass on Perry (though I doubt it), but it will pretty much have to take Gill. Kennedy's going to have to make up his mind sooner or later. A second Obama term, with one or two more Court appointments, would certainly help.

    Posted by: BABH | Jun 5, 2012 1:49:29 PM

  16. Why I think Perry will get at least 4 votes for review: the conservative justices, by taking the case before November and making gay marriage an election issue, will think that they are helping Romney. (In fact, further politicizing the Court will probably help Obama more.)

    Posted by: BABH | Jun 5, 2012 1:56:59 PM

  17. It's still ridiculous that loving, committed LGBT couples need to put their lives on hold because homophobic bigots are uncomfortable with us having equality and the same rights they currently enjoy!

    Posted by: Truth | Jun 5, 2012 1:58:30 PM

  18. Great news. And very interesting argument proposed by some above that uncertainty regarding Kennedy's decision may prevent risk adverse SCOTUS judges from accepting the case. I hope Ari touches on that topic.

    Posted by: anony6 | Jun 5, 2012 2:04:20 PM

  19. @Luke:

    Premature adjudication?

    Posted by: Jack | Jun 5, 2012 2:06:12 PM

  20. The dissent was also a message to SCOTUS. Everything about this case is fragile and the Chief Justice seems not to shrink from a fight. All bets are off.

    Posted by: Bingo | Jun 5, 2012 2:12:14 PM

  21. Interesting that the judges throwing hissy fits throw out NOM's and FOX News's "7 million people" talking point.

    You'd think they'd do a better job at using legal lingo to hide their obvious bias.

    Posted by: kpo5 | Jun 5, 2012 2:19:48 PM

  22. So not fair: all opponents have to do to extend the stay is file the motion to SCOTUS, whether it takes the case or not. This years-long stay is ridiculous and unheard of.

    Posted by: parnell | Jun 5, 2012 6:03:41 PM

  23. Well SCOTUS will issue a ruling by June 2013, so at most there is 1 year left before a final decision.

    Posted by: Matt N | Jun 5, 2012 8:12:11 PM

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