June 5, 2012
By Scottie Thomaston
The judges sitting in the Ninth Circuit have issued a new order in the Perry v. Brown case today. The full panel of Ninth Circuit judges have decided that en banc rehearing of the three-judge panel’s decision will not be granted. This comes after a months-long wait: the proponents of Proposition 8 announced their intention to seek en banc review of the Ninth Circuit’s three-judge panel decision on February 21 of this year. As we noted yesterday, the decision to deny rehearing of the case with a new, randomly-selected eleven judge panel means that Judge Reinhardt’s opinion, which was joined by Judge Michael Daly Hawkins and garnered a dissent by Judge N. Randy Smith, either way, will likely be appealed to the Supreme Court where the proponents will now likely file a petition for certiorari, asking them to review and possibly overturn Judge Reinhardt’s opinion for the Ninth Circuit’s panel of three judges.
An en banc rehearing at the Ninth Circuit Court of Appeals is much different from other circuits. Generally, en banc means that the entire court will rehear the case, with all judges in the circuit participating. But the Ninth Circuit has an inordinately large number of judges, so they have a procedure wherein they have an ‘en banc panel’ consisting of eleven judges: ten randomly-chosen judges plus the Chief Judge (at the Ninth Circuit that is Alex Kozinski) presiding. If rehearing had been granted, the randomly selected panel could have heard arguments and issued new briefing in the case or they could have decided to forgo that and issue a new decision without it.
Now that en banc rehearing was denied, the proponents have 90 days to file a petition for certiorari to the Supreme Court, seeking review of the decision striking down Proposition 8. It’s likely that Justices at the Supreme Court would have their conference to take up the petition and decide whether to grant review or not sometime after their summer break in October. Oral argument would follow a few months later, and then a final decision would be issued by June or July 2013.
Judge O’Scannlain has filed a dissent from the denial of en banc rehearing joined by Judges Bybee and Bea, and in it he discusses his belief that Judge Smith’s dissent was correct. He says that “we have now declared that animus must have been the only conceivable motivation for a sovereign State to have remained committed to a definition of marriage that has existed for millennia.”
No one is certain if the Supreme Court would grant review of the case as it currently stands. Judge Reinhardt’s opinion for the three-judge Ninth Circuit panel is very narrow and the holding is specific to California’s unique legal circumstances. A denial of rehearing in this case leaves the decision California-specific and there may not be four Justices – the number needed to grant certiorari – who want to visit an issue that’s so limited in scope. On the other hand, the panel’s decision did strike down an amendment to a constitution of an enormous state involving a contentious issue. And allowing gay couples to marry in California would nearly double the amount of people in the United States who live in an area that allows same-sex marriage.
This process has gone on for so long. The complaint was initially filed on May 22, 2009 and the trial began on January 11, 2010. Judge Walker didn’t issue a decision in the case until August 4, 2010. The Ninth Circuit’s ruling came much later, with the three-judge panel issuing its ruling on February 7 of this year. Now the Perry case is entering its final phase.
Now that the Ninth Circuit has denied en banc rehearing of the three-judge panel’s decision, the case will face its final test soon, at the Supreme Court, as the proponents are widely expected to seek review of the three-judge panel’s decision. If the proponents do file a petition for certiorari the Justices will look at the petition in a conference later this year where the final decision will be made: review the case or let the Ninth Circuit’s decision be the final word in this long journey to decide the fate of the odious Proposition 8. It promises to be an exciting year.
UPDATE 1 (Jacob): Thanks to the inimitable Kathleen, here is the full order from the Ninth Circuit (via Scribd):
UPDATE 2 (Jacob): Some more details. The original three-judge panel voted 2-1, along the same lines as the decision, to deny en banc rehearing, with Judges Reinhardt and Hawkins voted to deny it and Judge Smith voting in favor of it.
As expected, Judge O’Scannlain (who has written in favor of en banc rehearing on LGBT cases before and has excoriated the Ninth Circuit for its rulings favorable to gays and lesbians), wrote a dissent, joined by Judges Bybee and Bea, explaining why he supported the rehearing. Here is his brief dissent, in full:
A few weeks ago, subsequent to oral argument in this case, the President of the United States ignited a media firestorm by announcing that he supports same- sex marriage as a policy matter. Drawing less attention, however, were his comments that the Constitution left this matter to the States and that “one of the things that [he]’d like to see is–that [the] conversation continue in a respectful way.”1
Today our court has silenced any such respectful conversation. Based on a two-judge majority’s gross misapplication of Romer v. Evans, 517 U.S. 620 (1996), we have now declared that animus must have been the only conceivable motivation for a sovereign State to have remained committed to a definition of marriage that has existed for millennia, Perry v. Brown, 671 F.3d 1052, 1082 (9th Cir. 2012). Even worse, we have overruled the will of seven million California Proposition 8 voters based on a reading of Romer that would be unrecognizable to the Justices who joined it, to those who dissented from it, and to the judges from sister circuits who have since interpreted it. We should not have so roundly trumped California’s democratic process without at least discussing this unparalleled decision as an en banc court.
For many of the same reasons discussed in Judge N.R. Smith’s excellent dissenting opinion in this momentous case, I respectfully dissent from the failure to grant the petition for rehearing en banc.
Judges Reinhardt and Hawkins also filed a response to Judge O’Scannlain’s dissent today, concurring in the denial of rehearing:
We are puzzled by our dissenting colleagues’ unusual reliance on the President’s views regarding the Constitution, especially as the President did not discuss the narrow issue that we decided in our opinion. We held only that under the particular circumstances relating to California’s Proposition 8, that measure was invalid. In line with the rules governing judicial resolution of constitutional issues, we did not resolve the fundamental question that both sides asked us to: whether the Constitution prohibits the states from banning same-sex marriage. That question may be decided in the near future, but if so, it should be in some other case, at some other time.
UPDATE 3 (Jacob): I’ve updated our ‘where things stand’ page, which is the place to go for an overview of recent developments on the Prop 8 case and information about next steps. Here’s the pertinent section about what comes next, possible Supreme Court review, and how and when the stay on the decision will operate, as some have asked about in the comments:
Where things are at today: Because the Ninth Circuit has chosen not to rehear Judge Walker’s ruling en banc, the 3-judge panels decision striking down Proposition 8 is now the appellate court’s last say on the matter. The proponents of Proposition 8 now have 90 days to file hat is called a petition for a ‘writ of certiorari’ with the U.S. Supreme Court, which they have publicly stated they plan to do. The Supreme Court will then have discretion to choose whether or not it wants to hear the Prop 8 case, and may ask for additional briefings before issuing its decision (this is sometimes known as “denying cert” or “granting cert”). Because the Court takes a summer recess that starts in late June, it is unlikely any decision on whether the Court had chosen to take up the case would not happen until sometime into its fall term, which begins in October. If the case were reheard, a decision would likely be handed down by June 2013. In the exceedingly unlikely event that the proponents of Prop 8 do not choose to file a petition for certiorari, then marriage equality will be restored to California at the end of the 90-day period. If they do file a petition with the Supreme Court, the Ninth Circuit has issued a stay on its decision until Supreme Court review is complete. That means marriages couldn’t begin until the Supreme Court has officially denied cert or when it hands down its final decision, should it choose to rehear the case.