Filed under: 9th Circuit Court of Appeals
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.
By Jacob Combs
Today, of course, we’re all looking forward to the Ninth Circuit’s ruling (which we expect to be released on the court’s website around 10:00 a.m. Pacific) regarding whether or not the Prop 8 case will be reheard en banc by an 11-judge panel of the appeals court. Because of this focus on appellate court process today, I thought I’d take a little time to go into more detail about what the en banc process entails and what it could mean for another important marriage equality case that made news last week: the striking down of DOMA by the First Circuit Court of Appeals.
Veteran readers of Prop8TrialTracker.com and followers of the Prop 8 trial might easily think, “wait, hasn’t the Ninth Circuit already ruled on the constitutionality of Prop 8?” The answer is yes, the Ninth Circuit did issue a ruling this February that uphold the lower court’s decision that Prop 8 is unconstitutional, but that wasn’t the last stop for the case even within the Ninth Circuit itself.
In the simplest and broadest sense, there are three levels that make up the federal courts in the United States. The first and lowest level is made up of the district courts, which are apportioned by state. In California, which is the largest state in the union, there are several district courts. Judge Vaughn Walker heard the Prop 8 case in its first form in the Northern District Court of California. While district courts only have the first say on any given issue, they are extremely important, because they are the only levels where witnesses are brought into court to testify, as several did during the Prop 8 trial. The highest court in the United States is, of course, the Supreme Court, which has the final say on any case it takes up. The Supreme Court takes cases by discretion; that is, they choose what to hear and what not to hear.
In between lie the appellate courts, and it’s there that things get a little bit complicated. The country is divided up into 13 Courts of Appeal, with California falling under the Ninth Circuit, which is the largest in the U.S. Any case that has been decided by a trial court has an automatic right to appeal, although, as we all know, these appeals often take a lot of time.
Smaller appellate courts often have a handful of judges on staff, like the First Circuit, which has five active judges. The Ninth Circuit, on the other end of the spectrum, has 29 active judgeships. Because of the enormous number of cases that come to the appellate courts throughout the year, appeals are assigned to 3-judge panels, chosen at random, who consider the ruling of the lower district court and either uphold it or reverse it. Sometimes, the appeals courts remand the case, sending it back to the district court. This first 3-judge step is the guaranteed appeal that all cases are entitled to.
After a 3-judge panel has ruled, the lower side can either appeal to the U.S. Supreme Court, or they can choose to seek an en banc rehearing, in which all of the active judges in a specific circuit rehear the appeal. The earlier 3-judge panel ruling is vacated, and the case is considered anew. These en banc appeals are not guaranteed, and are rarely granted, due to the inherent complexity of having a large number of judges hear a case together in one location.
Because of its size, the Ninth Circuit has its own en banc procedures: since it is impractical to have 29 judges hear one case, en banc panels in the Ninth Circuit have 11 judges on them, with 10 chosen at random and the Chief Judge, Alex Kozinski, joining them. Intriguingly, this means that en banc decisions in the Ninth Circuit do not necessarily reflect the majority opinion of the entire court. For this reason, en banc rehearings in the Ninth Circuit are unlikely to be granted. Nevertheless, today’s announcement will tell us whether a new 11-judge panel will rehear the merits of Judge Walker’s district court decision (essentially making it as though the earlier 3-judge decision never occured), or whether that earlier decision stands and we move straight on to the Supreme Court, which could easily decline to hear the case.
What does all this mean, then, for the DOMA ruling recently handed down by the First Circuit? Because that ruling was unanimous and signed by all three judges, it is in essence en banc-proof, since there are only five judges total in the circuit. (Technically, the First Circuit is a 6-person court, but there is currently one vacant seat.) This means that it is highly unlikely a majority would vote to rehear the case.
Intriguingly, though, an eventual First Circuit decision on the DOMA case could end up being heard by only eight judges, since there is a chance that Justice Elena Kagan could recuse herself given her likely past involvement as Solicitor General in deciding the Justice Department’s position towards previous DOMA cases. In the event of a 4-4 split on the Supreme Court, the First Circuit ruling would stand, meaning that DOMA would be unconstitutional, but not by virtue of a sweeping majority decision by the Supreme Court decision saying so. Technically, the decision would be limited to the First Circuit only, although such a ruling would have an effect on DOMA cases in the other circuits as well.
With DOMA certainly on its way to the Supreme Court, we will find out later today whether Prop 8 will join it very soon. On the other hand, we could be looking at a good deal more waiting time in the Ninth Circuit before Prop 8 makes its way onto the Supremes’ desks
By Scottie Thomaston
AFER just broke the news that tomorrow, there will be an order in Perry v. Brown, the challenge to Proposition 8 that’s currently in the Ninth Circuit:
— AmericanEqualRights (@AFER) June 4, 2012
Here’s where things stand right now: the Ninth Circuit, in a decision by a three-judge panel has affirmed Judge Walker’s decision striking down Proposition 8 as unconstitutional, albeit on narrower grounds than he did. Then, the proponents of Proposition 8 asked the Ninth Circuit for an en banc rehearing, to vacate their decision and put the case before a larger panel of judges on the Ninth Circuit. We have been waiting for the judges to decide whether they will grant the en banc rehearing and start the whole process over, or let the three-judge panel’s decision written by Judge Reinhardt stand.
Tomorrow, we will likely find out what the judges decided regarding the en banc hearing. If they voted to rehear the case, the current narrowly-written decision by Judge Reinhardt goes away and a new panel will convene, featuring a random selection of ten judges with the addition of Chief Judge Kozinski overseeing the proceedings. There would be new briefings and oral arguments in the case at that point, so the process would be long and drawn out. The issues that would be at stake in a new rehearing would be: whether proponents have Article 3 standing as ballot initiative proponents to bring the appeal in the first place, and whether or not Judge Walker’s decision should be affirmed. If rehearing is granted, the en banc panel could affirm Judge Walker’s decision, or they could reject it on the grounds discussed in Judge Smith’s dissent. After new briefing and new argument and new deliberations over the decision, they would issue a new and final decision in the case that could then result in a petition for certiorari (or ‘review’) at the Supreme Court. Depending on what the final decision ruled, it’s unclear whether the Supreme Court would take up the case or not.
Alternatively, tomorrow the Ninth Circuit could issue an order saying that en banc rehearing was denied. If that happens, Judge Reinhardt’s narrow opinion stands, and the proponents of Proposition 8 can then petition for certiorari at the Supreme Court. If the Supreme Court were to deny review, the Ninth Circuit’s decision would stand, and Proposition 8 would be struck down. Gay and lesbian couples would be allowed to marry in California. If the Supreme Court grants review, there will be briefing and oral argument and a decision next year.
Tomorrow, we will have more as soon as the new order is released by the Ninth Circuit.