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No en banc hearing; Prop 8 case’s next stop: Supreme Court

Timothy Kincaid

June 5th, 2012

As many predicted, the full Ninth Circuit Court of Appeals has denied an en banc hearing to the Proponents of Proposition 8, California’s ban on same-sex marriage. They continued the stay on the decision for 90 days so that the Proponents may appeal to the Supreme Court of the United States for a writ of certiorari. Jim’s excellent commentary lays out the timing of the next steps.

The most interesting aspect of today’s filing was not the announcement that en banc was denied. Rather, the most fascinating aspect was in the dissent to the decision and the response to the dissent.


Judges O’Scannlain, Bybee and Bea, the most conservative judges on the circuit bench, wrote a terse objection to the decision not to grant en banc. Both what was included and what was not included are odd selections and will have pundits pontificating. They chose to quote President Obama’s call for the conversation to coninue in a respectful way (they think it disrespectful not to have en banc hearing). Yet the President’s views have no bearing on constitutionality, nor are they directors for the tenor or tone of judicial determination.

What was not included was much discussion of the merits of the appeal or the legal rulings. They declare that the majority’s reading of Romer “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”, but still stop short of actually stating that the ruling was incorrect.

Instead, the three paragraph dissent concludes with an endorsement of “Judge N.R. Smith’s excellent dissenting opinion in this momentous case.” But Judge N.R. Smith’s “excellent dissenting opinion” was anything but forceful. In short it could be summarized as “well, it’s possible that this wasn’t entirely based in animus and I’m just not yet fully convinced that there isn’t some possible legitimate reason for this discrimination, yet.”

Also interesting is that the ruling notes that “Judge N.R. Smith would grant the petition” but Smith did not join OB&B’s dissent.


In response, Judges Reinhardt and Hawkins – the two justices who upheld Judge Walker’s ruling – reiterated the narrowness of their opinion: “We held only that under the particular circumstances relating to California’s Proposition 8, that measure was invalid.”

What it means:

The Proponents took a bit of a gamble in asking for en banc. Considering the makeup of the Ninth Circuit, they had almost no chance of having the ruling reversed. In fact, depending on the panel, they could have resulted in an even more lopsided loss.

But what they could have achieved was a stronger dissent. They could have approached the SCOTUS with a scathing and biting dismissal of the court’s crazy, liberal, extremist views. And even without en banc, the dissent given by OB&B could have been a scathing and biting dismissal of the court’s crazy, liberal, extremist views.

They did not get that. They got a indignant objection to not giving the case the benefit of a hearing by the en banc panel (“at least discussing this unparalleled decision as an en banc court”) but as for the case, all detailed objections are limited to Judge Smith’s polite, somewhat reluctant and hesitant suggestion that, well, he’s not convinced. A cynical mind might even believe that the judges in objection would prefer that SCOTUS not give their objections too much mind.

Thus, the en banc attempt was a gamble and a loss for the Proponents. But, all in all, probably not a big loss.

The one thing that they might have preferred not come from the process was Reinhardt and Hawkins’ reminder about the narrowness of the decision. “Oh no,” they said, “this isn’t about the constitutionality of gay marriage bans, but only about the constitutionality of whether they can be banned after they have been granted.”

Going into the certiorari process, the case is situated such that the Supremes have every reason not to hear it and few reasons to do so. It only impacts one state, it only speaks to a very peculiar set of circumstances, and it gives the court the opportunity to delay dealing with the unconstitutionality of restricting civil marriage for an unpopular minority for another few years at least.

It is impossible to predict the actions of the Supreme Court, but I think it at least somewhat likely that SCOTUS will opt not to hear this case.



Mark F.
June 5th, 2012 | LINK

It’s quite possible they will punt on this case. However, I don’t think they will punt on the DOMA case also headed their way. We live in interesting times…

June 5th, 2012 | LINK

It would be sad if Perry were punted — it’s the best case with the best advocates arguing a gay rights case.

June 5th, 2012 | LINK

If the SC punts on Perry, they are still equating the Prop 8 decision with the Romer decision, which is still a big step. If they then take the MA DOMA case – on the issue of federal recognition of state marriages only – and agree, there would be a significant blow to the anti-equality forces, without the full blown “marriage must be equal” ruling the SC may be concerned about making.

That would leave full equality for another day, while strengthening the hand of the forces of equality. I could easily see Olson and Boies then finding a case in a state with an Amendment passed without a court finding in favor of gays, to extend the Perry ruling to all states. That might be more to the SC’s taste for not pushing social change.

June 5th, 2012 | LINK

I have to agree that it is highly likely that SCOTUS will punt, there isn’t much meat for them with this situation. If they punt it does set a precident for fed circuit courts if another state tries to remove gay marriage per referendum once granted.
It would then leave Olsen and Bois open to go grab a nasty backwater low brow antagonistic State, (do I hear NC as a recommendation coming from the angels on high?) to assert via SCOTUS a direct and deadly blow to the gay marriage issue once and for all.
That won’t be so easy if Obama loses, but it should be a cakewalk if he wins, which I believe he will.
Truly interesting times.

June 6th, 2012 | LINK

The issues presented in Prop 8 are fundamentally different from DOMA, however.


That is, one could uphold the constitutionality of DOMA, especially sections protecting state’s rights, but find against Prop 8 based on the specific circumstances (rights taken away from a targeted minority by plebecite).

In that vein, I think it’s entirely possible that the SCOTUS will punt on Prop 8, because it doesn’t settle and larger issues, and focus instead on the DOMA cases as they come up. The upshot of that might well be legalized gay marriage in CA and a firebreak for the remainder of the country where SSM is not desired. I have no idea what will happen for federal marriage, but, again, that has nothing to do with 8. I think the court will sever and fail to hear the case.

Stay tuned kids – the loss in WI today to me signals that Dems are in serious trouble come November. If we revert to a GOP administration again, with the Dems reluctant to wield minority power the way that the GOP does in the Senate, I’m very concerned that we could see 2+ SCOTUS seats handed to ultraconservatives, especially if it’s during Romney’s first term as he positions himself for re-election.

June 6th, 2012 | LINK

Email to CNN:

I am concerned that your repeated airing this morning of the Prop 8 trial rezults include one significant clip of a Drag Queen/Painted-Faced Nun, RATHER THAN Lawyers, Judges, Photos of Litigants, etc.

Who made this decision?

Is this really what CNN sees as representative to this important legal case?

This is completely derrogatory and non-representative of the actual events. Please do not ridicule that which should be serious reporting?

June 6th, 2012 | LINK

Out of 25 judges en banc, 21 said “no” to hearing the case, with 3 out if 4 that voted “yes” to hearing the case, writing descents.
Council in support of Prop 8 laments: “Perhaps the most positive news from today’s decision is that the court has stayed the decision up to and including the time that the United States Supreme Court finally decides this case,” Pugno said in a brief statement. “We will promptly file our appeal to the nation’s highest court and look forward to a positive outcome on behalf of the millions of Californians who believe in traditional marriage.”
Though I can’t imagine the SC taking a case where approx 24/5 fed circuit judges have given thumbs down, I will be very interested to see if Pugno keeps his word and files “promptly” w SCOTUS.
With no new “evidence” in Pugno’s pockets, it seems he is doing nothing more than crying over losing his shirt and is poutingly resentful towards the courts rather than actually thinking of providing justice for all Americans.
If he wants to continue to fall on his own dagger, he is certainly having a perfect martyr moment.

June 6th, 2012 | LINK

In the meantime, please please please keep spending the Church’s money on this. By all means, between this and paying for all the child rape, perhaps the bankrupted dioceses will reconsider how they choose to leverage the donations of their hard working church members.

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