Leave a Comment Jacob Combs
Prop 8 trial update: a look at the plaintiffs’ and San Francisco’s motions against an en banc hearing
March 1, 2012
9th Circuit Court of Appeals Briefs Prop 8 trial
By Jacob Combs
Last week brought us the Prop 8 proponents’ blast to the past brief arguing why the 9th Circuit should reconsider last month’s panel ruling striking down California’s marriage ban. Today, the plaintiffs and the City and County of San Francisco filed their response briefs, which can be read below, in which they carefully and persuasively lay out why there is no need for a larger panel of the court to take up the case. Here’s a look at the arguments they make.
To begin with, the proponents argued that the panel’s reliance on the Supreme Court decision Romer v. Evans, which struck down a Colorado constitutional amendment that would have prohibited legal protections for gays and lesbians, should be reconsidered by the en banc panel. According to them, because the law struck down in Romer was a broadly worded provision that would have stripped many rights from gays and lesbians but Prop 8 only took away the term ‘marriage,’ the two laws are distinguishable, and the panel erred in citing Romer as precedent in striking down Prop 8. But as San Francisco rightly points out in its brief, that argument focuses too much on the details of the Romer case and fails to take into account the underlying philosophy of the Supreme Court’s decision. Colorado’s Amendment 2 served no rational governmental interest, and could therefore only be seen as an unconstitutional expression of moral disapproval of gays and lesbians. The most important aspect of Amendment 2 was not that its broad effect, it was its inability to further any governmental purpose.
In the same way, it is almost impossible to argue that Proposition 8 served any specific government interest. It left intact the many rights that gays and lesbians in California have regarding the recognition of their relationships and their ability to raise children, taking away only the right to call their unions ‘marriages.’ As San Francisco argues, “The panel correctly refused to ‘credit a justification for Proposition 8 that is totally inconsistent with the measure’s actual effect and with the operation of California’s family laws both before and after its enactment.’” (9)
The city also points out that the proponents are incorrect in arguing that Baker v. Nelson, a 1972 Supreme Court case brought by a gay couple seeking to marry that was summarily dismissed, should be controlling precedent prohibiting the 9th Circuit from addressing the issue of marriage equality. Because the panel’s decision does not address the inherent constitutionality of marriage bans in any state (let alone those that do not allow gays and lesbians to marry), it is not in conflict with Baker v. Nelson. Indeed, as the plaintiffs argue in their brief, even Judge Smith, is his dissent from the overall opinion, wrote, ‘the constitutionality of withdrawing from same-sex couples the right of access to the designation of marriage does not seem to be among the ‘specific challenges’ raised in Baker.” (10) Instead, as San Francisco point out, the panel’s decision conforms with every other case that has considered state laws that provide ‘separate by equal’ status to gay and lesbian couples, as California did before marriage equality was enacted by the case In re Marriage Cases. ”Courts evaluating these laws,” San Francisco writes, “have consistently held they violate state due process and equal protection guarantees, even under rational basis. (13)
In their brief, the plaintiffs go one step further, in effect arguing that if the court were to grant an en banc review, it could be necessary for it to rule on aspects of the case that the panel chose not to address. For instance, if the en banc panel were to uphold Proposition 8, they would have to address whether or not there is an inherent constitutional right to marriage equality, which the 3-judge panel declined to consider. In addition, the 3-judge panel did not address the exhaustive findings of fact that Judge Walker included in his original district court ruling striking down Proposition 8. In rehearing the case, the en banc panel might have to make a decision regarding the level of deference (if any) to be given to those findings of fact. In essence, the plaintiffs’ argument here is that the 3-judge panel was correct in showing great restraint when it upheld Judge Walker’s ruling, and that a rehearing in the 9th Circuit could possibly wade into areas of the case that the court does not necessarily need to consider.
Reading these two briefs side-by-side with the proponents’ briefs, it is extremely difficult to find any compelling reason why the 9th Circuit should vote for a rehearing of the panel’s February ruling. The proponents’ arguments rely on outdated law and a reading of Romer that only takes into account the specific facts of that case while refusing to extrapolate what those facts could mean for the Prop 8 case. As the plaintiffs and San Francisco make clear, the 9th Circuit’s first ruling on Prop 8 should be its last.
Below, you can find the full briefs (via Scribd, h/t to Kathleen for getting us these) of the plaintiffs and San Francisco.
Having technical problems? E-mail equalityontrial AT couragecampaign DOT org for assistance!
32 Comments Leave a Comment
1.
Mark | March 1, 2012 at 9:34 pm
NoMw we wait on how long it will take before a re-hearing is granted or denied.
2.
Ann S. | March 1, 2012 at 9:34 pm
§
3.
Straight Dave | March 1, 2012 at 10:46 pm
According to the 9th Circuit rules here http://www.ca9.uscourts.gov/datastore/uploads/rul…
it looks like they must decide, within 5 weeks from the en banc petition, whether they will take the case. Or it could be as short as 3 weeks if no judge shows any interest at all (not likely).
"If a petition for rehearing en banc has been made, any judge may, within 21 days from receipt of the en banc petition, request the panel to make known its recommendation as to en banc consideration. Upon receipt of the panel's recommendation, any judge has 14 days to call for en banc consideration, whereupon a vote will be taken. If no judge requests or gives notice of an intention to request en banc consideration within 21 days of the receipt of the en banc petition, the panel will enter an order denying rehearing and rejecting the petition for rehearing en banc."
4.
Menergy | March 2, 2012 at 6:35 am
that was "en banc" of course — autocorrecting did me in again!
5.
Sam | March 2, 2012 at 6:49 am
Even if they vote to deny, I suspect it may take longer because there would certainly be a dissent from the denial of en banc review.
6.
Kathleen | March 2, 2012 at 7:23 am
Here are the rules governing the internal procedures of the Court. http://www.ca9.uscourts.gov/datastore/uploads/rul…
It makes my head spin trying to find my way through them (distinguishing between a judge called-for en banc vote vs. party petition, panel rehearing vs. rehearing en banc, etc.). The other day, I think I came to the conclusion that it could be up to 5 weeks from the time plaintiffs file their response to the petition, but it's now too early in the a.m. for me to point to the section I relied on for that conclusion. IF that's true, then we should know by the first week in April, at latest.
7.
Rick | March 2, 2012 at 7:47 am
Meanwhile, is the clock ticking on the 90-day period to appeal to SCOTUS? Or, does the 90-day period only begin when the en banc decision is reached (either to deny or after rehearing and making a ruling)?
8.
Phil L | March 2, 2012 at 7:59 am
I think the 90 day clock is after all of this. It's a big stall tactic, and that's the only reason they did it.
9.
AnonyGrl | March 2, 2012 at 8:01 am
Completely OT but worth a look… a response to the Million Mom/Archie Comics controversy.
http://www.the-gutters.com/
10.
Kathleen | March 2, 2012 at 8:10 am
Yes, Phil is correct. The fact that a petition for rehearing was filed on time stops the clock on the deadline for petitioning SCOTUS. The clock starts up again when either (1) rehearing is denied, or (2) if granted, the date of the judgment of the en banc panel.
11.
Kathleen | March 2, 2012 at 8:12 am
And by "starts up again" I mean the counter for the 90 day window for petitioning for cert starts over again from either denial or judgment of the panel. For example, if rehearing was denied on March 13, then a party would have 90 days from March 13 to petition SCOTUS.
12.
Sagesse | March 2, 2012 at 8:19 am
I can't post from work, but Chad Griffin of AFER has just been named president of HRC. The Advocate has an article.
13.
Brian | March 2, 2012 at 8:29 am
Last week, the Ninth Circuit gave Plaintiffs and the City 21 days to file an opposition to the en banc petition. In a pretty shocking move (we lawyers love to wait until the very last second), they filed after only 8 days. I'm glad they did that. Let's move this along already and restore full equality in California!
14.
Jamie | March 2, 2012 at 9:03 am
I'm not sure it's shocking at all. AFER will eventually ask to lift the stay AGAIN and they want to point to the fact that they have consistently acted in a timely manner while proponents of Proposition 8 have waited until the very last minute for EVERY filing.
15.
chiefscribe | March 2, 2012 at 9:03 am
Blurb on Chad Griffin's appointment as head of HRC http://thinkprogress.org/lgbt/2012/03/02/436464/h…
16.
Leo | March 2, 2012 at 9:31 am
They are also asking to expedite the schedule, and this presumably shows they are doing their part. The second part is not really true: the proponents appealed Judge Walker's ruling the very same day it was issued. (Perhaps because they wanted to justify the stay and not because they wanted to move things along, yet the fact remains.)
17.
Jacob | March 2, 2012 at 10:13 am
This is fairly dry stuff, but:
5.4.c.2 – The clock starts for the 9th Circuit to make its decision about en banc once the reply briefs have been filed.
5.5.a – All active judges then have three weeks to circulate memos.
5.5.b – All active judges then have two weeks to submit votes about the en banc. Failing to vote counts as a no.
It doesn't sound like that can be shortened at all, so my guess would be a hard and fast five weeks. Let's hope to hear a "no thanks" on April 6 or so.
18.
Carpool Cookie | March 2, 2012 at 10:39 am
I would LOVE it if no one answered….and they were left knocking outside the locked courthouse, "Hello? Helllll-ooooo??"
19.
James Sweet | March 2, 2012 at 11:29 am
From the footnote on page 8:
"….there is no Virtually Equal Protection Clause in the US Constitution…"
Love it!!!
20.
Kathleen | March 2, 2012 at 1:06 pm
Jacob, I think that's exactly how I came up with the 5 weeks from when plaintiffs filed their response. Also, while that's the time allotted for voting, if everyone votes before the deadline, it could speed it up.
21.
MightyAcorn | March 2, 2012 at 1:46 pm
I loved the response from the company that makes Archie Comics to AFA/One Million Moms:
"We stand by Life with Archie #16. As I've said before, Riverdale is a safe, welcoming place that does not judge anyone. It's an idealized version of America that will hopefully become reality someday. We're sorry the American Family Association/OneMillionMoms.com feels so negatively about our product, but they have every right to their opinion, just like we have the right to stand by ours. Kevin Keller will forever be a part of Riverdale, and he will live a happy, long life free of prejudice, hate and narrow-minded people."
I understand that the comics have sold out at Toys R Us stores around the country. I wish I'd been smart enough to buy one, or ten. Not being a collector type, it didn't occur to me that in fifty years this issue will be worth a mint, both in dollars and historical significance.
22.
NancyH | March 2, 2012 at 2:04 pm
Wouldn’t it be ironic if the NOMbies stalled this out so much that a Scalia or Thomas succumbed to illness?
23.
PoxyHowzes | March 2, 2012 at 9:04 pm
Once again, Therese Stewart hits one out of the park. A generation from now, our herstory books better damn well recognize Bois, Olsen, and Stewart equally.
24.
Reformed | March 2, 2012 at 9:36 pm
Just days ago, Maggie was braying that the marriage equality side was desperate, would do anything to keep their case from going to the supreme court. . . Interesting, the anti-gay side asked for an en banc hearing before the most liberal district court in the United States and the equality side files motions against it . . . hmmmmmmmmmmmm. (Things that make you go . . . )
25.
Str8Grandmother | March 3, 2012 at 3:45 am
I agree Poxy. In fact if you go back and listen to her arguing in front of the Appeals Court and read Theresa Stewart's briefs including this one, actually it seems to me that the Appeals Judges were swayed by her arguments more than Olson & Boies arguments. In their opinion it seems to me that they affirm mostly Theresa Stewart's arguments. She is a GREAT attorney!
In fact when I read the brief from City of San Francisco I can almost hear her reading the words with her quirky inflection.
"As the California Supreme Court has explained, same-sex couples in California "enjoy the same substantive core benefits . . . as those enjoyed by opposite-sex couples—including the constitutional right to enter into an officially recognized and protected family relationship with the person of one's choice and to raise children in that family if the couple so chooses."
26.
Kate | March 3, 2012 at 5:34 am
I am convinced that none of those people ever read the various trial documents. There is no sign in anything they write/post that gives evidence of them having those legal realities in their experience. Not that I'd expect most (any?) of them to understand them anyway …… we here have real legal scholars who can interpret them honestly and accurately for us. All "they" have is Michael Ejercito, who spews innaccurate and fantasy legalese of his own invention, and the uneducated NOMbies eat it up like cotton candy. But also like cotton candy, it melts and disappears instantly as soon as they take it in…………
27.
gayathomemom | March 3, 2012 at 6:49 am
and rots what little teeth they still have… Sorry, couldn't resist
28.
gayathomemom | March 3, 2012 at 6:50 am
Well, if the Ninth Circuit does take up the en banc review, how possible is it that their ruling would be closer to Walker's?
29.
Kate | March 3, 2012 at 6:55 am
Aren't these the same alleged "million" that are so furious about Ellen doing TV ads for JCPenney? Ellen, who gives away millions of dollars to needy people and causes? Of course, any good in the world that any of us do at all is totally wiped out by our simply being gay……. (Incidentally, I love those ads — my favorite is the one where she's in the Old West. HOT!!!!)
30.
Sheryl_Carver | March 3, 2012 at 7:55 am
Yup – that's the group, Kate.
I read that Toys R Us hadn't issued a statement re: this, so I emailed them, thanking them for carrying the comic & continuing to support ALL their customers.
Figured it couldn't hurt to be proactive.
31.
MightyAcorn | March 3, 2012 at 8:47 am
I don't think anyone can predict that with any confidence. I wonder if some bookie somewhere will start a pool, then we'll at least know what gamblers think will happen ( their guesses are as good as any, probably.)
32.
Charlie Galvin | March 4, 2012 at 10:54 pm
En banc review is essentially a “do over” that will repeat the whole appeal before the larger group of judges. They can go anywhere the 3-judge panel could have gone. But appellate courts generally try to avoid deciding any question that isn’t absolutely necessary to resolving the case in front of them. The Supreme Court has tended to rein in appellate courts that address broad questions of constitutional law when they didn’t really need to go there to resolve the instant controversy. This is why the 3-judge panel’s narrowly-drawn opinion has, I think, a good chance of being allowed to stand if rehearing is denied and the proponents petition for certiorari. Perhaps they agree with me, which could explain why they’re going for en banc review. They might win outright. (I doubt it.) Or they could lose again, but with a new opinion broad enough to make SCOTUS more likely to take it up. (More likely.)
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