February 20, 2012
By Jacob Combs
Tomorrow, February 21, marks a big deadline in the Prop 8 case that those of us who have been counting the days since the 9th Circuit’s decision have been eagerly anticipating: the last day that the proponents of Prop 8 can file a petition for rehearing with the 9th Circuit. The proponents have 14 days from the initial decision to do so, meaning that if they do not request an en banc review of the February 7 decision with a larger panel of the appeals court, the 3-judge panel’s ruling will be the last word at this level of appeal.
At this point, there’s no reason to speculate whether or not the proponents will actually file for a rehearing tomorrow, as they may be waiting until the last moment to do so. One question that is probably on many minds though is what happens to the stay depending on the proponents’ actions tomorrow.
In its ruling on February 7, the 9th Circuit wrote that the mandate (that is, the official notice of the decision) will not go into effect until 7 days after the deadline for a rehearing petition expires, or 7 days after a rehearing is denied. What that means is that the 9th Circuit’s stay on Judge Walker’s ruling striking down Proposition 8 will be lifted 7 days after tomorrow’s deadline (February 28), should the proponents choose not to file for rehearing. If the proponents do file for a rehearing, the stay is automatically extended until that rehearing is either denied or it is accepted and then ruled on, both of which could take some time.
Even if the proponents do not file for a rehearing tomorrow, however, it’s important to note that it is only the 3-judge panel’s initial stay that will expire on the 28th. Regardless of what they do tomorrow, the proponents have a full 90 days following the decision to seek Supreme Court review. Should they choose not to petition for rehearing, the proponents could still request an extension of the stay from the 9th Circuit pending Supreme Court review. Should that request be denied, they could petition the Supreme Court. Justice Kennedy, who is responsible for petitions from the 9th Circuit, could then either grant a stay on his own or refer it to the full court.
Tomorrow is certainly an important day no matter how the proponents of Prop 8 decide to act, because it gives us insight into their strategy moving forward. Nonetheless, it is too soon to say when marriages could resume in California.