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