Equality On Trial

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• 1. Alan_Eckert  |  June 4, 2012 at 12:46 pm

  This is just what I've been waiting for!

• 2. Jamie  |  June 4, 2012 at 12:48 pm

  They could also issue a ruling saying that the proponents don't have standing. Truth is, there are about a million different things that could happen tomorrow, and we won't know until – tomorrow.

• 3. Lesbians Love Boies  |  June 4, 2012 at 12:49 pm

  Me too Alan! My hope is this took so long because they wrote a very compelling argument why they denied the en banc hearing.

  It's these one day waits that seem to take forever though!

• 4. Roque  |  June 4, 2012 at 12:51 pm

  Is it Tuesday already? Can't wait!

• 5. MightyAcorn  |  June 4, 2012 at 12:56 pm

  Oh boy, here we go! Tummy butterflies anew! Here's hoping yet again for the swiftest and most favorable path to equality….

• 6. pdxtallman  |  June 4, 2012 at 12:56 pm

  Tomorrow's a towfer: Scott Walker goes away, perhaps to prison, and Prop 8 does, too….

• 7. Ann_S  |  June 4, 2012 at 12:57 pm

  From your lips to the goddess's ears.

• 8. Gabriel_Roybal  |  June 4, 2012 at 12:58 pm

  ready, set GO

• 9. Sagesse  |  June 4, 2012 at 1:00 pm

  @

• 10. B_Z  |  June 4, 2012 at 1:06 pm

  Most likely what took so long was one or more dissents. The panel opinion already speaks for itself.

• 11. Jansen  |  June 4, 2012 at 1:08 pm

  This post is not entirely accurate. If the 9th Cir. grants rehearing en banc, it may proceed w/ no new briefing and/or no new oral argument. It is entirely within its discretion and in fact, the plaintiffs specifically requested that should the 9th Circuit grant the rehearing motion that it proceed without additional briefing. If there is no further briefing or argument, this phase will not be nearly as drawn out Scottie Thomaston asserts.

  One other interesting point: if en banc review is denied, the subsequent petition for certiorari may get to the Supreme Court at about the same time as the petition in the DOMA case from the 1st Circuit. It is possible that the 2 cases could be consolidated on a limited basis for argument on common issues or it is possible that the confluence of the 2 petitions might simply work to persuade the Court to grant cert at this time.

• 12. Bob  |  June 4, 2012 at 1:14 pm

  twofer,, indeed!!!!!

• 13. Stephen  |  June 4, 2012 at 1:14 pm

  Why would they pick a Primary date in many states to release their opinion. Won't get a lot of national time.

• 14. Gregory in SLC  |  June 4, 2012 at 1:15 pm

  A little off topic, Washington news

  Gay marriage opponents to turn in signatures Wednesday:
  http://www.seattlepi.com/news/article/Gay-marriag…

• 15. Kathleen  |  June 4, 2012 at 1:17 pm

  There's no reason to expect this to be a ruling on any substantive issue (such as standing). The only issue currently before the court is whether or not to grant a rehearing en banc; it's almost certain that tomorrow's ruling is a decision on that request.

• 16. Bob  |  June 4, 2012 at 1:20 pm

  wow huge!!! fasten your seatbelts,,,,, that Scott Walker recall is looking like a tough challenge,,,,, and now this,,,, wonder if it was planned by the court for the same day,,,, waiting,,, sending love across borders,,, bringing EQULITY!!

• 17. Kathleen  |  June 4, 2012 at 1:22 pm

  That's my guess, too, B_Z, as to why it's taken so long.

• 18. Alan_Eckert  |  June 4, 2012 at 1:26 pm

  They don't care about the press coverage (or at last shouldn't).

• 19. Jamie  |  June 4, 2012 at 1:26 pm

  There's no reason to expect that the last three months have simply been the court considering whether or not to accept the appeal either.

• 20. Randall Reynolds  |  June 4, 2012 at 1:26 pm

  Fantastic news. Here's hoping the 9th Circuit deny the re-hearing!

• 21. Larry  |  June 4, 2012 at 1:28 pm

  Not to be a downer, but based on recent polling (see Nate Silver for instance), Walker is a heavy favorite to retain the WI governorship.

  My money is on denying en banc hearing, with a lengthy dissent by Judge O'Scannlain.

• 22. Randall Reynolds  |  June 4, 2012 at 1:31 pm

  That would be fantastic. With both HUGE cases coming from the 9th & the 1st, we will see Marriage Equality in ALL 50 States very, very soon!

  I say 2 years TOPS at this rate.

• 23. Kathleen  |  June 4, 2012 at 1:32 pm

  Yes, that's just what they've been doing, likely combined with time for one or more judges to write a dissent to whatever decision was made. Again, there is no other issue before this court at present.

• 24. truthspew  |  June 4, 2012 at 1:36 pm

  Meanwhile the 1st Circuit struck down section 3 of the DOMA act. That means that here in RI for the first time in almost 20 years we can file as married.

• 25. Kathleen  |  June 4, 2012 at 1:39 pm

  The 1st Circuit decision is stayed, pending an anticipated request for review to the Supreme Court. It's still not legal to file jointly with the IRS.

• 26. Seth from Maryland  |  June 4, 2012 at 1:40 pm

  finally lol anyway lets say they reject a rehearing, what will happen to the stay in place, will it be lifted?

• 27. Ann_S  |  June 4, 2012 at 1:43 pm

  Not if there is an appeal. Which there will be. Sorry, the stay will in all likelihood remain in place until every appeal (including to the SCOTUS) has been exhausted.

• 28. Stefan  |  June 4, 2012 at 1:52 pm

  I actually think that with the DOMA case for sure heading to the Supreme Court, Perry v Brown may simply be denied cert. The ruling was very narrow (essentially a reaffirmation of Romer v Evens), and the Supreme Court may wish to kick the can down the road another few years so as to avoid the risk of ruling on the constitutionality of same sex marriage just yet. Also, denying cert would eliminate the risk of any aspects of the two cases contradicting themselves.

• 29. Larry  |  June 4, 2012 at 1:52 pm

  At the least, you can prepare amended returns for the last couple of years, so that when Section 3 is finally struck down, you can reclaim the money from the IRS.

• 30. Scottie Thomaston  |  June 4, 2012 at 1:59 pm

  Me too: "My money is on denying en banc hearing, with a lengthy dissent by Judge O'Scannlain."

  I'm just speculating, but that's what I would imagine is going to happen.

• 31. Jansen  |  June 4, 2012 at 2:05 pm

  I think it is much more likely that we will have some resolution by June 2013. The only way it could conceivably go for 2 years is if there is an en banc review AND that review involves new briefing and argument on a leisurely schedule AND the 9th Circuit then takes a long time to render a decision AND then there is a cert petition that is granted. You'd really need all of that to happen to stretch it out to 2 years.

  Better target dates are late 2012 (if cert is denied) or June 2013 (if cert is granted).

• 32. Jacob  |  June 4, 2012 at 2:07 pm

  To any legal experts: What is the process for reviewing a petition for certiorari–for this Court and the 1st District that just issued the DOMA decision? Timeframes? Thanks!

• 33. Kathleen  |  June 4, 2012 at 2:08 pm

  And if O'Scannlain stays true to form, he'll tell us how he *would have* decided if he'd been given the chance. You know… "judicial restraint" and all. :/

• 34. Jansen  |  June 4, 2012 at 2:12 pm

  I had been thinking for a long time that it is more likely for en banc to be denied. For some reason, the issuance of this "alert" is making me doubt my prediction. I still hold to my prediction, but I am not used to seeing a court alert in advance of a denial of a rehearing motion.

  As for the interplay with the DOMA case, there is also the possibility that SCOTUS could hold one of the cases and render a decision in the other. Then as to the former, it could dispense with the case with a short decision referencing the latter opinion. Or it could remand for disposition in light of the ruling in the other case. Lots of options. But I think that having the both of them floating around SCOTUS at the same time increases the odds that SCOTUS does get involved.

• 35. B_Z  |  June 4, 2012 at 2:15 pm

  The deadline for petitioning for certiorari is 90 days, so that would be early September for both cases. We can assume that the proponents will delay things as long as possible, but that will still allow for enough time for SCOTUS to consider the petition at the very beginning of the next term (October).

• 36. Stefan  |  June 4, 2012 at 2:16 pm

  The likely issued an alert because they know this is a famous case that many people care about.

• 37. Stefan  |  June 4, 2012 at 2:18 pm

  They have 90 days to petition for certiorari. After that the Supreme Court usually decides in a matter of weeks whether or not they will grant it.

• 38. Jansen  |  June 4, 2012 at 2:24 pm

  Add 30 days or so for briefs opposing the cert petition, which takes you into October. Then allow time for the petition to be considered. That can vary a great deal. It can be as little as 6 weeks or it can be months. A more realistic timeframe would be mid/late November to early 2013. Significantly, I do not think SCOTUS will be able to rule on the cert petition before Election Day.

• 39. clsycby  |  June 4, 2012 at 2:25 pm

  Here we go again folks!
  Pins and needles are starting to leave scars! Anyone have any idea of what time we may hear from the court tomorrow?

• 40. B_Z  |  June 4, 2012 at 2:31 pm

  But will the plaintiffs use the full 30 days? Unlike the other side, they've been trying to move things along quickly.

• 41. Jansen  |  June 4, 2012 at 2:39 pm

  That is a very fair point. Lawyerly custom is to take all the time you are allowed, but Boies/Olson don't follow that. In the case of the petition for rehearing en banc, they filed their opposition with a couple of days even though they were allowed 30 days. They clearly had it ready to go well in advance and probably just tweaked it a bit after they saw the other side's filing.

  It was very impressive. I've always been put off by the fact that Boies/Olson wouldn't do this on a straight pro bono basis and have soaked up millions of dollars in gay money that could be deployed to great effect in ME and WA and MD. But no one can argue with the quality of the work they do or the speed with which they do it.

• 42. Jamie  |  June 4, 2012 at 3:08 pm

  Why did it take twice three times as long as their own rules allow?

• 43. Jamie  |  June 4, 2012 at 3:10 pm

  I wouldn't expect the two cases to be combined. From the court's perspective they are two entirely different issues.

• 44. Jamie  |  June 4, 2012 at 3:10 pm

  Because it happened to be ready on Tuesday.

• 45. Carpool Cookie  |  June 4, 2012 at 3:15 pm

  I've heard of two en blanc hearing sizes (10 and, I think, 16.)

  If someone doesn't prevail at the smaller gathering, can you appeal that the 9th Circuit hear it again with more judges present?

• 46. Jamie  |  June 4, 2012 at 3:16 pm

  The Supreme Court chewed the 9th Circuit out on their stay procedures a few years ago. Don't their rules require that the stay be lifted, unless it's specifically extended by the court? If the 9th Circuit denies an en banc hearing, can proponents really make a case that they are likely to win, one of the requirements for the 9th Circuit to extend the stay? If the 9th Circuit denies en banc, it's more likely they'll let the stay expire per their standard rules and make the proponents go to the Supreme Court if they want to continue the stay.

• 47. Str8Grandmother  |  June 4, 2012 at 3:26 pm

  I wish we could have that whole damned year back that we waited while the Supreme Court of California weighed on on Standing. Grrr.

  But anyway it is what it is, and so Yeah! on the decision tomorrow on en banc. I hope it is denied.

  On May 18th I called the 9th Circuit and I managed to get through the lower layers of staff and into the Staff Attorneys area for the 9th Circuit. I had a nice conversation and asked them to tell the Judges to hurry up. How this was important and a Constitutional Right was at stake and people are literally dying unmarried while this is being deliberated, blah blah blah, they said they would pass on my message. NOW most likely that was simply a bums rush but it never hurts to try. So two weeks ago I tried. That is always my thought. Chances are it won't do any good, but if it doesn't hurt anything, I am gonna try.

  I don't think there is any way for us to loose. IF they go for en banc WE.WILL.WIN. an there will be even more Federal Judges agreeing. If they don't go for en banc then it is just that much quicker it goes to the Supreme Court.

  At the Supreme Court they will hear this de novo (brand new) and the Supreme Court could make a sweeping decision like Judge Walker did. It could be our Brown vs Board of Education. They do not have to rule narrowly like Reinhart/Hawkins/Smith did. They could go big. They could, there is nothing stopping them.

  And if they don't go big, then at a minimum they will rule that at least in California Prop 8 will be struck down. No way do I believe that we will loose.

  Once we had Walkers ruling I knew we would win all the way, the only open question in my mind is, How Big will the Win be.

  I bet Cooper would like to take back "We don't need any Evidence"

• 48. Kevin  |  June 4, 2012 at 3:28 pm

  Also, to add to this thread, it only takes four votes on the SCOTUS to grant cert.

• 49. peterplumber  |  June 4, 2012 at 3:37 pm

  Notice of Docket Activity

  The following transaction was entered on 06/04/2012 at 3:33:18 PM PDT and filed on 06/04/2012
  Case Name:Kristin Perry, et al v. Edmund G. Brown, Jr., et al
  Case Number: 10-16696

  Docket Text:
  NOTICE: An order regarding the petition for rehearing en banc will be filed Tuesday, June 5, 2012, at approximately 10:00 a.m. [8201363] [10-16696, 11-16577] (RP)

• 50. Str8Grandmother  |  June 4, 2012 at 3:42 pm

  thanks, it is nice to know about the timing.

• 51. JefferyK  |  June 4, 2012 at 4:29 pm

  Whatever the news tomorrow, I'm sure it will be bad for us.

• 52. Iskandar  |  June 4, 2012 at 4:32 pm

  En banc for the 9th Circuit means 11 judges (10 + Chief Judge) since it is rather burdensome to gather all 26 active judges for one proceeding.

• 53. Stefan  |  June 4, 2012 at 4:33 pm

  And even with that the Supreme Court only hears around 1-2% of cases which get appealed to them.

• 54. Stefan  |  June 4, 2012 at 4:36 pm

  Str8Grandmother I agree with everything you said and more. Given the timeframe and how narrow this decision was I will bet my next paycheck that they will deny an en banc hearing.

• 55. Jason  |  June 4, 2012 at 4:42 pm

  Because they have a great deal more judges. They spend many weeks exchanging memos on the matter. The ONLY issue before the 9th circuit court right now is whether or not to great an en banc review. They do not have the ability to do anything else.

• 56. Jason  |  June 4, 2012 at 4:42 pm

  Grant

• 57. Scott Wooledge  |  June 4, 2012 at 4:43 pm

  It may be anti-climatic. My guess is the hearing en banc is denied, but of course, a stay is issued pending SCOTUS appeal.

  So, yet again, another win without a prize.

  Of course granting the en banc hearing will suck, as it will deal the final resolution by another year or more.

• 58. Scott Wooledge  |  June 4, 2012 at 4:52 pm

  Neither the Prop 8 nor DOMA cases offer much hope for ME in all 50 states.

  DOMA case isn't even asking the court for that, so that's almost impossible. The DOMA case is just asking the court to tell the Federal government to recognize same-sex marriage where it is already legal. (Again, not asking it to make it legal elsewhere. And not addressing Section 2 that says it's fine for states to ignore same-sex marriages performed elsewhere.)

  Ted Olsen will make the case Prop 8 compels universal marriage equality in USA. But the Appeals ruling was so narrow as to effect only California, I'm guessing this SCOTUS at best just affirms Ninth did the right thing, but doesn't EXPAND the ruling out of California.

  Not to be a wet blanket, but it just seems we still don't have our Loving v. Virginia case yet. So, watch for it, and don't get your hopes too elevated on Prop 8 and DOMA.

• 59. Iskandar  |  June 4, 2012 at 4:56 pm

  But only an en banc panel can re-open the issue of heightened scrutiny vs. rational basis… this can only be a good thing, no?

• 60. Scott Wooledge  |  June 4, 2012 at 4:57 pm

  I think there's a good chance the SCOTUS turns down Prop 8. The ruling as it stands only affects California.

  Ted Olsen will argue that the case must be heard so that he can argue for universal marriage equality in the USA. But the court really isn't anxious to consider that question. So, the narrow ruling of Prop 8 serves as a good excuse to punt on it. As in: "Sorry, not an issue of national importance. Looks like the Ninth got it right. Mavel tov, Cali gays! (The rest of you can suck it.)"

• 61. Scott Wooledge  |  June 4, 2012 at 4:59 pm

  I remember that City of SF asked for a 24 hour alert when the Appeals ruling was due to come back.

  They may just be respecting that request. Or maybe SF made another similar request that hasn't been reported by the news.

• 62. Scott Wooledge  |  June 4, 2012 at 5:02 pm

  Those are all good points.

  The counter-argument is this: if the stay is lifted, the gays will be able to get married!

  And we can't have that! The stay will stay, my money says.

• 63. Jamie  |  June 4, 2012 at 5:07 pm

  Why did it take twice three times as long as the 9th Circuits own rules allow (rules which they developed for themselves)?

• 64. Scott Wooledge  |  June 4, 2012 at 5:08 pm

  Well, if they weren't doing this, Olsen and Boies would easily be collecting tons of money from someone else to pursue other goals. The gay dollars that have funded them have been very well spent.

  This idea that people should work for equal rights for free is counter-productive to the movement at times, imo.

  One gets what ones pays for. If one doesn't want to pay for an attorney to argue your case in court, (or skilled professional to run your campaign) one shouldn't be surprised if the people willing to do it pro-bono are… perhaps, not the cream of the crop.

  Highly quality professionals do deserve to be paid for their talents and skills. Our equality deserves to be treated like something worth paying for.

• 65. Jamie  |  June 4, 2012 at 5:11 pm

  We do. It happened in North Carolina last month. Just waiting on the lawsuit.

• 66. Str8Grandmother  |  June 4, 2012 at 5:11 pm

  Jamie that is a good thought, a good point I had not thought about. Thx! Oh man wouldn't that be great if it gets turned down tomorrow and at the same time the Stay is lifted?

• 67. Scott Wooledge  |  June 4, 2012 at 5:12 pm

  I agree, that is the upside, it could reconsider precedent (Is it High Tech Gays that's in our way in the 9th?).

  But still… it kinda seems remote they'd actually do that. It seems like all these LGBT cases Justices are totally skittish about overturning precedent or creating NEW precedent.

• 68. Str8Grandmother  |  June 4, 2012 at 5:13 pm

  That is good to know to Kevin, i was not aware of the exact number. Thx.

• 69. Leo  |  June 4, 2012 at 5:14 pm

  "In the unlikely event that six judges might command a majority of an 11-judge en banc court and express a view inconsistent with the views of the other 21 active judges on the court, the circuit rules provide for review by the full court upon the request of any judge. This has never happened since the limited en banc rule was adopted by the Court in 1980." Chief Judge Kozinski

• 70. Jamie  |  June 4, 2012 at 5:15 pm

  I hear you, but remember Walker refused to extend the standard stay and told proponents that the 9th Circuit was that right venue. I'd say the same for this situation. The 9th Circuit has ruled. If they deny re-hearing, they will have ruled definitively.

• 71. Str8Grandmother  |  June 4, 2012 at 5:21 pm

  You know that part is true. If we would go to en banc they could rule on heightened scrutiny applying. But as we saw on the 1st Circuit DOMA Ruling the Judges can use something more than simply "almost anything goes Rational Basis", they can do rational Basis review "with bite" a/k/a Rational Review
  It is a step up from "almost anything goes Rational Basis Review", kind of what I think as a very Strict and Narrow Rational Basis Review.

  You are right it would be a chance to get Heightened Scrutiny of we did get en banc.

  I just don't see how our side looses either way it goes.

• 72. Stefan  |  June 4, 2012 at 5:24 pm

  They are setting the stage to do just that.

• 73. Stefan  |  June 4, 2012 at 5:26 pm

  They will likely request an en banc hearing in the Golanski case and then they can overturn that precedent.

• 74. Scott Wooledge  |  June 4, 2012 at 5:28 pm

  We have actionable causes all over the place. NC isn't unique from the other 30-some bans. Just waiting for someone to file a case in FEDERAL court.

  But an actual CASE that's currently in the works that could deliver a Loving v. Virginia style sweeping 50 state victory? I'm not aware of one, if it's not Prop 8.

  Maybe Lamba Legal's Nevada case. Most of the others cases for marriage equality, like IL and NJ are filed in state courts, so won't be national victories, even if they go our way.

• 75. Tyler  |  June 4, 2012 at 5:51 pm

  Dude, you're wrong. The only motion before the en banc court is whether to take the case en banc. It has not been asked to modify the panel's ruling, and therefore has no power yet to alter that decision. The whole court in fact, never does this. It only does so in en banc panels of 11 judges (instead of the 27 members of the full court).

  Additionally, there is no time limit for releasing a ruling on a motion. Perhaps there's a time limit for having the vote (I worked in a different federal court of appeals and there was no such deadline), but there's certainly no time limit for them releasing the opinions concurring in or dissenting from the decision made by the whole court.

• 76. Tyler  |  June 4, 2012 at 5:54 pm

  Yeah, remember when he wrote a ten page advisory opinion in the Don't Ask Don't Tell case? The court dismissed the case for mootness but he felt compelled to put 10 pages in the federal register about how the Constitution does not protect gay people.

• 77. Tyler  |  June 4, 2012 at 5:58 pm

  This is true but most cases aren't as important as these two

• 78. Rich  |  June 4, 2012 at 6:01 pm

  My GSA students and I will be waiting (im) patiently for the ruling. Thank you Str8Grandmother for your tireless optimism. We want to adopt you!

• 79. Iskandar  |  June 4, 2012 at 6:17 pm

  SCOTUS will not want to get ahead of public opinion – sad, but true. Loving was decided when only a handful of states still banned inter-racial marriage… If CA regains ssm, and assuming WA, MD, ME retain/reinstate ssm, then fully a third of the country's population will be living in ssm states, but the number of ssm states will still be only 20% of all states. At least with DOMA -Section 2 – gone, all these states will have full equality. Then it is just a matter of enough married couples moving to non-ssm states to begin the long process of making those states live up to the Full Faith and Credit clause.

• 80. Iskandar  |  June 4, 2012 at 6:19 pm

  sorry, meant DOMA – Section 3…

• 81. Glen  |  June 4, 2012 at 6:23 pm

  I don't see SCOTUS taking this case if it remains limited to California. If it affected the entire 9th circuit they very likely would, but as this would only impact a single state based on very specific circumstances (granting rights that are later taken away without a valid cause), then why would they take it?

• 82. Glen  |  June 4, 2012 at 6:29 pm

  I would also take that bet. Odds are en banc is denied and the U.S. Supreme Court doesn't take the case due to the narrow ruling, which I suspect was the 9th circuit's goal, so as to get the plaintiffs resolution as quickly as possible (and give the higher court the opportunity to bow out on a question they'd prefer to avoid until more states have enacted marriage equality).

• 83. Larry  |  June 4, 2012 at 6:32 pm

  The NJ case has both state and federal arguments. So in theory if it gets to the NJ Supreme Court it could be appealed to US Supreme Court. My guess is that it depends on whether the case is about marriage rights (a broad case SCOTUS might take) or about the difference between civil unions and marriage (a fairly narrow case that SCOTUS probably wouldn't take since it would only affect a handful of states).

• 84. Scott Wooledge  |  June 4, 2012 at 6:34 pm

  It depend on how you define "ahead of public opinion." We may be banned more places, but public opinion polling</aL is better than it was for interracial marriage at the time of <i>Loving.

  "In 1968, the year after the “activist” Supremes legalized interracial marriage in its decision on Loving vs. Virginia, a Gallup poll found that the vast majority of Americans still opposed the idea that blacks and whites could marry — 72 percent to 20 percent. Just 10 years earlier, in the wake of a California Supreme Court decision that overturned newly minted anti-interracial marriage laws in the state, Gallup found that 94 percent of Americans opposed mixed-race marriages."

• 85. Glen  |  June 4, 2012 at 6:40 pm

  Another plus to this thing being dragged out longer is that every day more and more people are getting on board with gay rights and marriage equality. That includes judges who DO have lives outside of their court rooms and are just as exposed to the reality of who gay people are (as friends, family, coworkers, acquaintances, etc..).

  Delaying this does NOT help the anti-gay crowd one bit. Heck the longer they wait the closer John Roberts children get to adolescence (I think they are 11 now) and start 'altering' their fathers point of view on this subject. And if one of Roberts kids turned out to be gay, then it would be ALL over for the anti-gay crowd.

• 86. Edy  |  June 4, 2012 at 7:00 pm

  It could affect other Ninth Circuit states if people vote for marriage bans there (e.g. WA).

• 87. Mike  |  June 4, 2012 at 7:03 pm

  In reality, there are other issues before this court at present. Other cases, decisions to be made on those cases, decisions on whether to hear, or hear en banque appeals from other cases, etc.

  In addition, the judges must consider the process they will take if an en banque review is granted or not. And attempting to encourage or discourage other judges to vote for or against en banque review. And writing opinions (to be read in court or not – maybe to be placed as an op-ed piece in some newspaper) on why one should or should not take place. Etc.

  Yes, on the surface, it is a simple 'yes' or 'no' vote. In reality, underneath the surface, there are a LOT of conflicting things going on.

  So to say "there is no other issue before this court at present" is laughable, even if there actually are no other cases before the court.

• 88. Mike  |  June 4, 2012 at 7:17 pm

  "Not to be a wet blanket,"

  Are you ever not?

• 89. Mike  |  June 4, 2012 at 7:21 pm

  After the highest state court rules, and a federal issue is involved, the appeal is to SCOTUS.

  Guess how Lawrence v. Texas made it to SCOTUS?

  And remember, SCOTUS is not limited to issuing a decision within the exact confines of the case, but can expand those confines.

• 90. Scott Wooledge  |  June 4, 2012 at 7:22 pm

  Interesting thought.

  Apparently 11 year old Jack Roberts was once quite the tap dancer…

  No comment. His daughter Josie is 12. If they're attending Friends School, as most of DC's elite kids are, as Chelsea Clinton did, their heads will be filled with all kinds of crazy idea.

• 91. DonG90806  |  June 4, 2012 at 7:30 pm

  Thank you for clearing this up for Jamie.

• 92. DonG90806  |  June 4, 2012 at 7:32 pm

  I think what they were trying to say, Mike, is that there is only one LEGAL issue before the court — whether or not to grant an en banc hearing.

• 93. Chris in Lathrop  |  June 4, 2012 at 7:34 pm

  The suspense has been killing me!

• 94. Scott Wooledge  |  June 4, 2012 at 7:35 pm

  So, are you aware of a case, other than Prop 8, that could prompt the SCOTUS to deliver a ruling of a Constitutional right for gay people to marry in all 50 states?

  This thread just branched off from one poster predicting we're 2 years away from that. I don't see it. Prop 8 is the only case likely to make it to the SCOTUS in the next two years.

  Since none of the DOMA cases challenge section 2, I don't see those expanding to affirm marriage equality as a right of every American.

• 95. DonG90806  |  June 4, 2012 at 7:38 pm

  Mike, I think that after 1977 that "After the highest state court rules, and a federal issue is involved, the appeal is to SCOTUS. " After 1977, there is no longer a right to automatic appeal from a State Court decision involving a federal statute. I believe that you still have to file a petition for cert. Perhaps one of the lawyers here could clear this up.

• 96. DonG90806  |  June 4, 2012 at 7:40 pm

  Lawyers for both sides are given 24 hours notice by the court that a decision is coming down.

• 97. DonG90806  |  June 4, 2012 at 7:45 pm

  The SCt gets between 10,000 and 12,000 petitions for cert each year; they grant cert to 80 to 100 cases, usually tending on the lesser side.

• 98. DonG90806  |  June 4, 2012 at 7:50 pm

  Don't forget that Roberts assisted our side in the preparation of the Lawrence v. Texas case. He played the role of Justice Scalia during preparation for oral argument. At least he's already been exposed to all the issues.

• 99. Mike  |  June 4, 2012 at 8:04 pm

  Considering that the filing of tax returns is not required until April 15, and extensions can be requested (and are automatically granted), thus taking the filing out to July 15, the ruling could be made prior to when a couple files their tax return.

  And also, SCOTUS could, (probably won't, but could) issue a ruling prior to the end of June, maybe within a few days or weeks after hearing the oral arguments.

  Thus it is well in the realm of theoretical and even practical possibility that the Court could rule before the tax return is filed.

  Also remember, amended Federal tax returns can be filed up to three years after the original was due, and most states (but not sure about RI) follow the lead of the Federal IRS.

  So what you state is technically true as of right now, but there is a possibility that it will be false if/when SCOTUS issues a decision.

• 100. Seth from Maryland  |  June 4, 2012 at 8:04 pm

  i always thought roberts could be a wildcard when one of these cases gets to the supreme court

• 101. Scott Wooledge  |  June 4, 2012 at 8:22 pm

  I think he's the wild card too, based on his exposure to our side on the Romer case.

  Not that his work indicates he learned anything or wasn't just collecting a paycheck.

  But research shows, people who know LGBT people have a more favorable view of LGBT issues. He's not completely unexposed to our situation.

  Not that I think it's likely he'd vote for us. Just not as crazy impossible as most people think.

• 102. Mike  |  June 4, 2012 at 8:23 pm

  According to the SCOTUS calendar for the 2012 term:

  First conference day is October 5 (a Friday). It is at conference where SCOTUS decides, or not, to accept a case. Since this is not a 'life or death' case' SCOTUS will not be pushed to decide earlier. Conference results are traditionally announced on the following Monday, but October 8 is a Federal holiday, so announcement on October 9.

  30 days for the other side to respond, and we're now at November 8, two days after the election, but let's say a response gets to the court in a week or less. Add in a few days, weeks or months before oral arguments are scheduled, time for receipt of briefs and friends of the court briefs, even under the fastest scheduling feasible, it would be extremely difficult for SCOTUS to actually hear the case until well after the election.

• 103. Mike  |  June 4, 2012 at 8:40 pm

  If that is what was being attempted to being stated, it was stated extremely clumsily.

• 104. Mike  |  June 4, 2012 at 8:49 pm

  Did I state that there is an automatic appeal that SOCTUS MUST accept? SCOTUS doesn't accept any and all appeals, they can and are picky as to which cases they accept or not. In fact, the Constitution says that there is only ONE type of case that SCOTUS must accept – a case of one or more states against one or more other states.

  If you read what I stated, I said the appeal must go to SCOTUS, but I did NOT state that SCOTUS must accept the appeal.

• 105. ebohlman  |  June 4, 2012 at 9:30 pm

  If a rehearing were granted, the issues considered would be whether Walker should have recused himself and whether Reinhardt's ruling on the merits should stand. The ruling on Article 3 standing wasn't covered by the rehearing request (it couldn't be, since the proponents prevailed there).

• 106. Paul S.  |  June 4, 2012 at 9:44 pm

  No, the entire case is now before the 9th circuit because it was appealed. They can choose to take the case or issue any number of rulings. They are under no obligations to ask for additional briefs or arguments.

• 107. Straight Dave  |  June 4, 2012 at 9:47 pm

  Roberts' work on Romer was pro bono, which I presume suggests some personal interest. At least we can't easily write it off as just collecting a paycheck.

• 108. Jamie  |  June 4, 2012 at 9:50 pm

  Uh no. The entire case was appealed. The first thing the judges must decide is whether the parties that appealed have standing. You don't get to appeal a decision except for this part.

• 109. Bob  |  June 4, 2012 at 9:50 pm

  Could Prop 8 and DOMA being combined? I don't think they really can. Prop 8 deals with taking away a right given to a group (Equal Protection) whereas DOMA (the decision handed down as of now) deals with the Full Faith and Credit Clause.

  I personally wouldn't want them combined because DOMA's decisions have been crafted so methodically that adding Prop 8 would just hurt it. SCOTUS has the choice of repealing DOMA or repealing the Full Faith and Credit Clause.

• 110. Jamie  |  June 4, 2012 at 9:54 pm

  Loving v Virginia was decided when 70% of Americans agreed that interacial marriage should be illegal. We didn't cross the 50% threshold until the 90's. Your statement ignores history.

• 111. Jamie  |  June 4, 2012 at 9:58 pm

  If DOMA is gone, there will be less cover. It's impossible to have all the rights of marriage available to gay couples, while a state bans them from marriage, and continue to claim that's "equal protection". If DOMA didn't exist, then Prop 8 would have denied gay people "actual" rights and the CA Supreme Court would have struck it down. They said as much in their opinion.

• 112. Jacob  |  June 4, 2012 at 10:35 pm

  I don't disagree with you, except for the final remark. Our equality deserves to be treated like something worth fighting for purely because it is just. The money is well spent on them, but that doesn't mean our cause deserves a market price.

• 113. Jacob  |  June 4, 2012 at 10:41 pm

  Every day it's delayed, some of our elderly couples who might have been married lose that opportunity forever.

• 114. _BK_  |  June 5, 2012 at 5:33 am

  I did not know about that but now want to slap him.

  > . <

• 115. _BK_  |  June 5, 2012 at 5:36 am

  If that was a joke, I didn't get it.

• 116. Dr. Brent Zenobia  |  June 5, 2012 at 5:36 am

  If SCOTUS invalidates Section 2 of DOMA, I would expect we'd soon see lawsuits from same-sex couples in "everything but marriage" civil union states filing lawsuits. After all, if the state is truly granting same-sex couples all the rights of marriage except for the right to use the word "marriage", then what grounds does the federal government have for denying those rights and benefits?

• 117. Bill S.  |  June 5, 2012 at 5:36 am

  My prediction: Motion to re-hear en bac will be DENIED by a *very* close vote, possibly tied.

• 118. AnonyGrl  |  June 5, 2012 at 6:20 am

  Did the en banc request include the recusal? I don't recall. If it did not, wouldn't that mean it would not be considered?

• 119. Str8Grandmother  |  June 5, 2012 at 6:39 am

  3 1/2 Hours to Go
  Optimistic.

• 120. takemusu  |  June 5, 2012 at 7:49 am

  Make no mistake, I <3 Gavin Newsom but I wish he'd taken back "Whether you like it or not!". Can we trade that for "We don't need any evidence" and start over?

• 121. takemusu  |  June 5, 2012 at 7:50 am

  2 1/2 ….

• 122. Leo  |  June 5, 2012 at 7:56 am

  It did.

• 123. Tom  |  June 5, 2012 at 8:10 am

  It doesn't matter. The proponents appealed for an en banc review and the court gets to review the entire case once when that happens. It's like a kid complaining that another kind on the playground hit him, the teacher gets to ask what he was doing before the incident and what he did after the incident.

• 124. fRaNkLiN  |  June 5, 2012 at 8:17 am

  Dude, you are wrong. The motion before the en banc panel is an appeal of the decision, the first part of which is typically whether the court accepts the case.

  The en banc panel has no obligation to ask for additional briefings, or have additional oral arguments. They have a record already from their own court.

• 125. Scott Wooledge  |  June 5, 2012 at 9:04 am

  I woudn't presume it was charity on Roberts' part. It probably wasn't at all.

  Now, I don't know the specifics to Roberts, but usually "pro-bono" means free for the client, but the firm still pays an associate's salary while they performed the work.

  To an associate, it's just another assignment from the boss, that they do no company time, collecting a company paycheck. The company gets credit for "charity" for giving legal advice for free.

  No one can know how willingly he performed the work. If your boss calls you into his office and says, "I want to put you on this gay Pro-Bono case," it's pretty bad for your career to say no, even if you'd very badly like to. That said, maybe he embraced it, enjoyed it and learned from it? He's never really talked about it much publicly. The press should ask him if they have a chance. That would be interesting.

• 126. Scott Wooledge  |  June 5, 2012 at 9:16 am

  In today's political circle post-Citizen's United, "fighting for" and "paying for" are synonymous.

  Our opponents are dropping literally, millions and millions of dollars to thwart us. The Alliance Defense Fund, one of our fiercest foes in LGBT equality court cases, has an annual budget of $36M. They are, of course, just one of many, many well-organized, very well-funded foes who we square off with in court.

  The idea we can just "fight" them with plucky, sack cloth activists with painted signs and grassroots rallies is just a silly idea. People who have to work on other cases to pay their rent can't devote the attention to all the details that need to be covered in a big court case like Prop 8.

  And top legal talent, like Boies and Olsen won't give their work away, when they can earn a fortune elsewhere. Who would?

  It's a nice idea, that people should do it because it's right. But people like to be able to pay their rent, and pay employees. Only in John Grisham novels does the plucky, impoverished sackcloth lawyer score a big victory at the SCOTUS.

• 127. Scott Wooledge  |  June 5, 2012 at 9:27 am

  Its seems to me you could do it in one fell swoop.

  You could ask a Sec of State in a marriage ban state to recognize a same-sex marriage performed elsewhere, citing the Full Faith & Credit Clause as applying to same-sex marriage. The state would claim DOMA Sec. 2 forbids it. The case could then filed that Sec 2 violates the FF&C clause, maybe throw in Equal Protection claim and others.

  If the SCOTUS agrees, a likely conclusion is FF&C and Equal Protection compel Red States to recognized same-sex marriage. Though I'm sure the conservatives on the court will fight like Hell to find another conclusion.

  It's a high bar in this court, and probably why there haven't been any court challenges to Sec 2 so far. A good chance it backfires, delivering a devastating Hardwick-type ruling.

• 128. Scott Wooledge  |  June 5, 2012 at 9:37 am

  This quote: "we will see Marriage Equality in ALL 50 States very, very soon! " just struck me as unrealistic and worthy of a reality check.

  It depends on who you consider very, very soon. A realistic timeline is probably 5 years at the earliest, except the pretty remote chance that Prop 8 delivers.

  Take my opinion for what it's worth. If you want to believe 50 state marriage equality is coming "very, very soon," do so with my blessing.

  I'm old enough to remember the optimistic declarations we'd have a vaccine for AIDS in just five years!!!

  That was back in 1985. Glad I didn't bet the farm on that.

  (Or that President Bill Clinton was going to let the gays serve in the military, back in 1992.)

• 129. Kathleen  |  June 5, 2012 at 9:50 am

  As soon as en banc review is granted (if it were), the entire decision by the 3-judge panel is set aside and the en banc panel reviews the case as though it is coming to them directly from the district court. All issues in the case, including standing are considered.

• 130. Iskandar  |  June 5, 2012 at 9:56 am

  En banc, DENIED. SCOTUS, ho!

• 131. Str8Grandmother  |  June 5, 2012 at 10:03 am

  EN BANC DENIED!!!!
  I was on the phone with the 9th Circuit and "no it is not there yet," when "Oh Wait, here it is EN BANC DENIED!!!"

• 132. Prop 8 Trial Tracker &raq&hellip  |  June 5, 2012 at 10:11 am

  [...] Prop 8: Tomorrow, action in Perry v. Brown is expected; here’s what could happen [...]

• 133. Kathleen  |  June 5, 2012 at 11:03 am

  Are you saying that rational basis review "with bite" is call "Rational Review"? If so, you are incorrect. "Rational basis review" is sometimes referred to as simply "rational review." That is, "rational basis review" and "rational review" are synonymous.

• 134. Mike  |  June 5, 2012 at 1:35 pm

  One correction:

  The first conference day for SCOTUS is actually September 24, not October 5. Advance all time frames up two weeks. (It sometimes pays to read 'the fine print' – VBG)

  In reality, though, the only way SCOTUS would make a decision before the election would be to deny cert. But remember, they likely will have the DOMA case appealed to them, and may want to tackle that case (as it easily could directly affect people nationwide), but Perry only directly affects California.

• 135. Str8Grandmother  |  June 5, 2012 at 2:09 pm

  I am describing what the 1 Circuit Court said,
  "The opponents of section 3 point to selected comments from a few individual legislators; but the motives of a small group cannot taint a statute supported by large majorities in both Houses and signed by President Clinton. Traditions are the glue that holds society together, and many of our own traditions rest largely on belief and familiarity–not on benefits firmly provable in court. The desire to retain them is strong and can be honestly held. For 150 years, this desire to maintain tradition would alone have been justification enough for almost any statute. This judicial deference has a distinguished lineage, including such figures as Justice Holmes, the second Justice Harlan, and Judges Learned Hand and Henry Friendly. But Supreme Court decisions in the last fifty years call for closer scrutiny of government action touching upon minority group interests and of federal action in areas of traditional state concern"

  I have figured this out to be an extra close Rational Basis/Scrutiny or what others have called Rational Basis with Bite or Rational Basis Plus .
  href="http://www.towleroad.com/2012/05/waldmananalysisdoma.html&quot;
  "Tenth Amendment, these federalism concerns further support the more searching form of review of rational basis plus"

  "Great summary. Though I prefer the term I was taught in school, "rational basis with bite." Like an equal protection werewolf.

• 136. Mike  |  June 5, 2012 at 7:39 pm

  It's one thing to be a Devil's Advocate; it's quite another to be a wet blanket. Wooledge ALWAYS finds the worst case scenario, and extols that scenario, but never explains how to not 'fall into the trap' of that worst case scenario.

  The purpose of a Devil's Advocate is to find and bring up the worst case scenario. Wooledge appears to do that well. Wooledge forgets the second part of the job of a Devil's Advocate – namely explaining how to avoid that worst case scenario.

  Oh, and as I attempted to explain above, it was not a joke, but an expression of my feelings about Wooledge.

• 137. sher  |  June 11, 2012 at 6:20 am

  Please tell me in laymans terms…what does it mean that it was denied? Is this a good thing for LGBT or bad?? Sorry….I do not understand all the legal terminology.

• 138. Kathleen  |  June 11, 2012 at 1:49 pm

  What were you studying in school that taught you the term "rational basis with bite"? Also, I hadn't realized you'd gone to school later in life – I seem to recall you're just a few years younger than I am. Just curious in what context this would have come up in something you were studying. Very few people except law students have reasons to study terms like this.

• 139. Str8Grandmother  |  June 11, 2012 at 3:05 pm

  No no not me studying, that was a quote from a comment I read on Towle Road. I Put quotes around it. It was the commenter saying s/he learned it as rational basis with bite in school. I gave the link to where you could read the whole comment.

• 140. Kathleen  |  June 11, 2012 at 4:10 pm

  Ah, thanks for the clarification. The use of quotations marks was confusing; you closed quotes in the first paragraph of the reference, opened but didn't close quotes in the second paragraph and used double quotes for an interior quote. So I was having trouble following which part of your post was you speaking and which part was you quoting some other source.

  Again, thanks for clarifying.

• 141. Kathleen  |  June 11, 2012 at 4:41 pm

  It just means that a larger panelof the 9th Circuit (w/11 judges) won't be reviewing the earlier decision of the 3-judge panel which struck down Prop 8. Whether someone thinks this is good or bad for us depends on what that person thinks a larger panel might do with the case.

  But whatever that might have been, it would have meant yet another level of appeal and yet more delay in a final resolution to this case. So, in that sense, it's good that they denied the request for en banc review. There is now just one more possible appeal left to the Proponents of Prop 8: the U.S. Supreme Court.

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