Will Prop 8 get “en banc” hearing by Ninth Circuit?

Timothy Kincaid

June 4th, 2012

Tomorrow the Ninth Circuit Court of Appeals will announce whether it will give an en banc hearing to Perry v. Brown (nee Schwarzenegger), the challenge to California’s Proposition 8.

In February, the Ninth Circuit Court of Appeals released its decision upholding Judge Vaughn Walker’s ruling that Proposition 8 is in violation of the US Constitution. The Appeal was heard and decided by three judges selected at random.

The losing side in an appeal can request that the case be heard “en banc”, or by all of the judges. In the Ninth Circuit, there are too many appellate judges to all hear the case, but a panel of 11 judges would be randomly selected. The Proponents requested an en banc hearing.

The decision whether to hear a case en banc is made by a majority vote of the circuit judges, which in this case requires 13 judges to agree. But if en banc is not granted, a circuit judge can write a dissent to the decision not to hear the case, which can be as useful to the Proponents as if en banc were granted and that judge were a dissenter to a decision. (Thus even if en banc isn’t granted, they may get a stronger dissent than Judge Smith’s vague “well, I’m not exactly completely convinced… yet” dissent.)

Should en banc be granted, the case will be scheduled and heard before the en banc panel. This will be, of course, a considerable delay. But based on the make-up of the court, it is likely that Judge Walker’s ruling will continue to be upheld, perhaps by an even greater percentage.

Should en banc not be granted, the Proponent will request certiorari, or a hearing by the Supreme Court. This is a ways down the road, likely, but this is the big decision. Should certiorari be granted, the question of whether banning some citizens from equal access to civil law based on their orientation is a violation of the US Constitution will be heard by the court of final decision. Should it not be granted, then Proposition 8 would be overturned and marriage would become legal again in California.

But, as the case currently stands, this would apply only to California. Unless, in their denial of certiorari, the court states otherwise. Which they won’t.


June 4th, 2012

So… if the appeals court won’t rehear the case, how long does the stay remain in effect? That is, is there some time limit before which the proponents must request certiorari, and how long afterwards would the Supreme Court either accept or decline?

Timothy Kincaid

June 4th, 2012

If en banc is denied, the Proponents have 90 days in which to request a writ of certiorari. The stay likely will be held by the Ninth and, if not, then SCOTUS will likely issue an emergency stay until they either hear or deny certiorari.


June 4th, 2012

Hopefully en banc will be denied. The clock is ticking. If Romney wins and Ginsberg retires before SCOTUS hears the case, that’s it, we’re done for a generation.


June 4th, 2012

Why is “en banc” in quotes? It’s not a made up thing, or something that people talk about that doesn’t actually exist.


June 4th, 2012

It’s in quotes because it’s a term that he defined immediately afterwards.


June 4th, 2012

That’s not really an answer, but stay ignorant my friend!

Gene in L.A.

June 4th, 2012

Actually it is an answer, a correct answer. He’s not being ignorant just because you don’t understand or like what he says. It’s a technical term so he introduced it in quotes and then defined it for those who might not be familiar with it. Notice that subsequent uses are no longer in quotes.


June 4th, 2012

The repeated references to “Judge Vaughn” should be to “Judge Walker”, unless he’s starring in a new reality show I haven’t heard about.

Timothy Kincaid

June 5th, 2012


Yes, Judge Vaughn Walker, not the other way around. Thanks. It’s now corrected.


June 4th, 2012

The only thing more annoying than grammar Nazis are incorrect grammar Nazis.


June 4th, 2012

And the only thing more annoying than incorrect grammar Nazis are the people who actually call them Nazis. Do you honestly not understand the weight of that word? Seriously. And no, that wasn’t an answer. He put something in quotes that doesn’t belong in quotes. It doesn’t matter if it was defined immediately after. If I call you an “asshole” and then immediately tell you what it means, it doesn’t suddenly make it OK to put in quotes.


June 5th, 2012

Anyway, nothing against you Timothy. I hope you don’t take this personally. I was just pointing out something that I feel is incorrect. I think you’re a great writer, and I will continue to read the postings on this site.

Timothy Kincaid

June 5th, 2012


No problem, I’m not offended. But I probably would not do differently in a future similar situation.

I assume that most of our readers are not attorneys nor find regular use of the term “en banc”. And generally when I introduce an unfamiliar term or phrase, especially one with a connection to the legal field, I put it in quotes in it’s first usage so as to cue the reader that it wasn’t a typo, but a term with a specific meaning.

This may not be proper grammar; I’m really not sure. But it’s what I’ve become accustomed to in my line of work and it makes sense to me.

Perhaps you can forgive Jim and me if we fail to use proper grammar from time to time. Though we both write a great deal as part of our regular full time jobs, neither of us has a journalistic degree, background, or training. Jim is an engineer and I am an accountant.

Gene in L.A.

June 5th, 2012

Tony, he put it in quotes for the same reason you did in your post. As someone with a degree in English I disagree that it “doesn’t belong in quotes.” Maybe you can say on what your belief is based? There are often acceptable exceptions to rules of usage.


June 5th, 2012

Ryan — frankly, I’m terrified of a Romney win simply because it puts us in a 12/16 GOP domination of the courts in any case, with a strong possibility of a 16/20 domination — and the Democrats in the Senate don’t appear to play hardball on nominees to the extent that the GOP does. Ginsberg is the tip of the iceberg here. 4 – 8 years is a long time.

By the way — it is common usage to put words in another language (French, or Latin, for example) in italics. Names of ships may be italicized or underlined. Books titles should be underlined.

Grammatically and stylistically, the quotation marks are 100% correct for the reasons given. Also, the use of “Nazi” might have been reduced to the lower case (“nazi”) to connote a colloquial usage of the word, rather than a direct reference to the actual National Socialist Party.

At the end of the day, anyone in journalism will tell you that comprehension takes precedence over the strict rules of grammar. While I hate to see a coarsening of the written language arising from laxity, I also realize we don’t need to write as though it’s 1880, either. (By the way, I was always taught that contractions should be eschewed in formal writing, but that’s style, not grammar). Oh, and the only thing more annoying than an incorrect grammar nazi is an incorrect grammar nazi with a bad case of political correctness. If I want to use the term “grammar nazi”, I certainly will, and I don’t need people who can’t figure out quotation marks questioning my intelligence, education, or morals in an effort to discredit an argument — which is precisely what that little attempt at shaming Ryan was intended to achieve.

Tim, we’ve had many back and forths. I still think y’all (and, for the record, I’m a Yankee — I just love the pronoun that actually addresses the weakness of the Queens English in failing to identify the 2nd person plural) need a copy editor from time to time, especially re: typo’s, but there’s something charming and non-slick about a site that actually has its share of typo’s, and which typically retains its factual failings with cross-out rather than simply pretending something was never said. The only exception to that, in my opinion, would be when you post quotations — given that you are effectively speaking on someone else’s behalf, typo’s in a quotation leave the reader with a question as to who made the error, and that can impact the impression being made of the original source, and that’s not okay.

Alright I’ve said my piece. Time for bed.


June 5th, 2012

Whew, it’s not our joke, it’s Jerry Seinfeld’s. Irony is lost on some I ‘spose. My personal preference is that grammar ‘aficionados’ e-mail in their corrections because, in my opinion, nothing screams ostentatious pretentiousness like pointing out grammar mistakes in the comments section.

But back on topic, all else being equal, which of these would be the best?

I would think an en banc confirmation with a denial of the motion to grant a writ of certiorari would be ideal. That way dissents would have to focus on the facts at hand rather than on the decision to “not hear it” and we’d have no wider imposition of an unpopular right from an unelected body.

On the other hand: who knows? Perhaps we’ll never be “ready” as a country to accept gay marriage as my argument presupposes; in that case it’d be pointless to hope that this case doesn’t appear before the SC. Plus the SC doesn’t necessarily have to impose anything. This might very well be the best chance we have before the high court for a long time… at least until those DOMA cases work their way up.


June 5th, 2012

@Andrew-There’s no need for an apostrophe in “typos” if you mean the plural of “typo.”


Mark F.

June 5th, 2012

An en banc hearing was just DENIED. Next stop SCOTUS.


June 7th, 2012

When Mark F. posted that an en banc hearing has been denied, I was curious and went looking for more details. It was not a close decision to deny a rehearing it was 21 of the 25 judges who declined. One of those wanting a rehearing seemed to me to be willing to consider any idea to deny California citizens the right to a civil marriage. The two judges in the majority on the ruling responded quite adequately IMO.


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