Filed under: 9th Circuit Court of Appeals
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.
By Adam Bink
A new brief filed by Love Honor Cherish in the case, opposing a rehearing by the 9th Circuit Court of Appeals was recently filed. In it is this:
Plaintiffs and Plaintiff-Intervenor have prosecuted this case diligently and have argued emphatically for expedited consideration at every stage in this lawsuit. Recognizing this urgency, this Court’s motions panel gave the case expedited consideration in the same order in which it stayed enforcement of the District Court’s injunction. To encumber the fundamental right to marry through protracted litigation is tantamount to depriving gay and lesbians couples of that right. For some, this deprivation will be permanent. In the time that this litigation has been pending,many gay and lesbian couples have quite literally not lived to see the day when they could get married. These words are not just rhetoric. The harm wrought by this years-long delay in resolving the status of marriage equality is tragically illustrated by the case of Derence Kernek and Ed Watson, a couple in their late seventies who had been in a loving relationship for over forty years. Ed was diagnosed with Alzheimer’s disease in summer 2010, and his mental condition was deteriorating rapidly. Derence and Ed posted a video on the Internet in which they expressed their hope that they could be married while Ed’s health still permitted. Unfortunately, Ed passed away shortly thereafter, on December 7, 2011. They were never able to marry.Undoubtedly, there are countless other loving couples like Ed and Derence who will not be able to marry in their lifetimes – or do so in the presence of their family and friends – because of the duration of this case. Indeed, members of Love Honor Cherish have experienced the heartbreak of the fact that life is not eternal.
The full brief can be found here, or embedded below. It’s fairly short and to the point.
Prop 8 trial update: a look at the plaintiffs’ and San Francisco’s motions against an en banc hearing
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.
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By Jacob Combs
This Tuesday, the proponents of Prop 8 filed a motion to have their appeal of Judge Walker’s decision striking down Prop 8 reheard by a larger en banc panel of the 9th Circuit’s judges. In their 50+ page brief, the proponents lay out the reasons why they think the 2-judge majority that upheld Judge Walker’s decision earlier this month erred in their ruling, and attempt to make a case with which they can prevail before a larger appeals panel. Here’s a look at the petition, the proponents’ arguments, and why they’re unlikely to succeed in the next step of the process.
In their brief, the proponents essentially make two major arguments: 1) that the 9th Circuit panel erred in relying on the Supreme Court case Romer v. Evans in making its decision to strike down Prop 8 and 2) that Prop 8 should pass a rational review test because it encourages society’s vital interest in ‘responsible’ procreation. I will consider each of these claims in turn.
The proponents make their most intriguing arguments on the subject of Romer v. Evans. In that case, decided in 1996, the Supreme Court struck down Amendment 2, a Colorado constitutional amendment that would have prohibited state jurisdictions from taking any legislative, judicial or executive action to afford legal protections to gays and lesbians. In its ruling, authored by Justice Anthony Kennedy, the Supreme Court wrote:
[Amendment 2] is at once too narrow and too broad. It identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence.
The 9th Circuit relied heavily on Romer when it invalidated Prop 8 earlier this month, seeking to point out the similarities between the two laws. Quoting from Romer, Judge Stephen Reinhardt wrote:
Proposition 8 is remarkably simliar to Amendment 2. Like Amendment 2, Proposition 8 “singles out a certain class of citizens for disfavored legal status….” Like Amendment 2, Proposition 8 has the “peculiar property” of “withdrawing from homosexuals, but no others,” an existing legal right–here, access to the official designation of ‘marriage’–that had been broadly available, notwithstanding the fact that the Constitution did not compel the state to confer it in the first place. Like Amendment 2, Proposition 8 denies “equal protection of the laws in the most literal sense” because it “carves out” an “exception” to California’s equal protection clause, by removing equal access to marriage, which gays and lesbians had preiovusly enjoyed, from the scope of that constitutional guarantee. Like Amendment 2, Propsition 8 “by state decree…puts homosexuals in a solitary class with respect to” an important aspect of human relations, and accordingly “imposes a special disability upon homosexuals alone.” And like Amendment 2, Proposition 8 constitutionalizes that disability, meaning that gays and lesbians may overcome it “only by enlisting the citizenry of the state to amend the State Constitution” for a second time. (44-5, internal quotations and edits omitted)
What Judge Reinhardt does here is very powerful: he takes the logic the Supreme Court applied to a case that is similar but has some significant differences, and applies that logic to the new facts of the Prop 8 case. This is what judges are supposed to do. He goes on to acknowledge that Amendment 2′s effect was much broader than Proposition 8′s, but nevertheless recognizes that Prop 8 does “work a meaningful harm to gays and lesbians” that “must be justified by some legitimate state interest” (46). In his opinion, Judge Reinhardt argues that it was unconstitutional for California’s citizenry to revoke gay and lesbian couples’ right to marry after it had already been afforded to them by the California Supreme Court.
Prop 8′s proponents will have none of this, arguing, “the panel majority’s reading of Romer would bring the case squarely into conflict with Crawford v. Board of Education, which expressly “reject[ed] the contention that once a State chooses to do ‘more’ than the Fourteenth Amendment requires, it may never recede.” (7) In their eyes, the timing of Prop 8 and the California Supreme Court decision that legalized marriage equality in the state is essentially irrelevant. That court decision, In re Marriage Cases, was decided in May of 2008; Prop 8 was passed in November of the same year. In their brief, the proponents argue that Prop 8 was simply an attempt by California’s citizenry to restore a traditional definition of marriage that had been undermined by a judicial decision, writing, “Certainly nothing in Romer so much as hints that the Federal Constitution bars the People of a State from restoring a longstanding law that has been briefly set aside by their courts.” (14)
But the proponents then go on to undermine this very assertion, noting that “the decision in the Marriage Cases was issued after Proponents had collected the necessary signatures to qualify Proposition 8 for the ballot and did not become final until after Proposition 8 had been officially qualified for the ballot.” (12-13) Had the California Supreme Court stayed its decision pending the outcome of the Prop 8 initiative, the proponents argue, marriage equality would never have been legal in California.
This is pure hypocrisy. Either Prop 8 represented the citizenry’s desire to amend the state constitution following what they saw as judicial overreach, or it predated the court decision, and was in no way a response to it. The proponents cannot have it both ways, although they try hard to. Taking their words (at least on pages 12-13) at face value, then, I would reject the argument that Prop 8 was a response to a judicial decision, and instead would argue that it was an attempt to go further than Proposition 22, the voter-approved law banning marriage equality that would be struck down in In re Marriage Cases, by enshrining a prohibition on marriage equality in the state constitution.
In their brief, the proponents do bring up the good argument that it would be difficult to view Romer as a case that prohibits a state from taking away any right that it had chosen to offer before. Nevertheless, they are mistaken in believing that Judge Reinhardt’s decision is only based on the idea of taking away a previously bestowed right. On the contrary, the 9th Circuit’s decision goes much further by refuting the proponents’ argument that Prop 8 was related to a rational governmental interest. This brings me to the proponents’ second argument: that Prop 8 promotes responsible procreation. Follow me to the extended entry for more on that.
By Jacob Combs
Updated to include the petition for rehearing.
Metro Weekly reports that Charles Cooper, lead attorney for the proponents of Prop 8, has informed them that his team will ask the full 9th Circuit Court of Appeals to review the 3-judge decision that earlier this month struck down the marriage ban as unconstitutional. Metro Weekly breaks down what happens next:
Usually, en banc review involves all of the active judges on the court, but the Ninth Circuit — due to the more than 20 active judges on the circuit — has adopted a unique “limited en banc” procedure in which all the active Ninth Circuit judges vote whether en banc consideration will be given. That will be the request made by today’s filing.
If a majority of the court supports en banc consideration, then the chief judge of the circuit, Judge Alex Kozinski, and 10 randomly selected appellate judges from the circuit will hear the en banc appeal, which can involve briefing and oral arguments.
Cooper told the publication his team would make the official filing later this afternoon, before today’s deadline for rehearing.
As we wrote here on P8TT yesterday, the proponents’ decision to seek en banc review at the 9th Circuit means the stay on Judge Walker’s decision is extended indefinitely until the appeals court decides whether or not to review the panel decision.
When the 9th Circuit issued its ruling earlier this month, Chris Stoll of the National Center for Lesbian Rights shared with us what the process of rehearing might involve:
It usually takes months for the en banc reconsideration to be completed. If a party asks for en banc review, the request is sent to all of the 20-something active judges on the court. Memos are often exchanged between the judges before a vote takes place on whether to take the case en banc. If they take it, names are drawn for the panel and a whole new series of briefs are usually filed, which takes a few more months. Then they hold oral argument and issue a decision. It is really almost like starting the whole appeal all over again.
The proponents’ decision today means the road to a final decision on Prop 8 may have gotten a bit longer. Nonetheless, the plaintiffs’ attorneys have made it clear that they will seek to have the stay lifted, now that Prop 8 has been struck down by two separate courts. In the 9th Circuit’s own guidelines, the court says that an en banc rehearing should only be heard if 1) there is a need for “uniformity” in the court’s decision, 2) the matter is a “question of exceptional importance” or 3) the ruling “directly conflicts with an existing opinion by another court of appeals or the Supreme Court.” The proponents are likely to argue that the Prop 8 case is a matter of “exceptional importance,” but they may face an uphill battle convincing a majority of the 9th Circuit that the appeals panel’s decision needs to be reconsidered, especially given how narrow the ruling was.
In any case, P8TT will, as always, keep you up to date as we move forward to the next step. Our side has already won twice in court, and the other side’s weak arguments show little promise of becoming stronger with time.
UPDATE: Thanks to Kathleen in Quick Hits, we now have the various documents that were filed with the court today. There were three: Imperial County Clerk Chuck Storey’s request to intervene in the case, the proponents request to file a rehearing position longer than the court usually allows, and the actual petition for an en banc rehearing, which can also be read below.
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.