UPDATED Wednesday 6:01 p.m.   The Ninth Circuit Court has ordered the challengers to Proposition 8 to file a response to the rehearing petition within 21 days — that is, by March 14.  The order is here.


Arguing that the issue is of “exceptional importance” and that a Ninth Circuit Court panel got it wrong, sponsors of California’s 2008 ban on same-sex marriage in the state — “Proposition 8” — asked the appeals court to reconsider the case en banc, a move that would wipe out the panel ruling and slow the progress of the case toward the Supreme Court.   In a 52-page rehearing petition, the ballot measure’s backers contended that the panel’s decision on February 7 directly contradicts four prior Supreme Court rulings.

The petition also sought to have the fuller court wipe out the District Court judge’s 2010 ruling that nullified Proposition 8, asserting that his failure to disclose that he is a gay man involved in a long-term partnership disqualified him from trying the case — an argument that the Ninth Circuit panel had rejected.

It is up to a majority of the Circuit Court’s 25 active judges to decide whether the case should be reconsidered — first by an 11-judge bench and then, perhaps, by all of the active judges on the Circuit Court.   If rehearing is granted, it could take months for the case to be decided within the Circuit Court, delaying what almost everyone expects: an ultimate test of the issue in the Supreme Court.  The proponents of the ban nevertheless opted to attempt to get further review in the Circuit Court, thus keeping the issue going below the Supreme Court.

The panel decision, the petition contended, not only would “doom California’s ability to maintain the traditional definition of marriage” as a union between a man and a woman. It also erred, the backers said, in issuing a ruling that “creates a regrettable disincentive for [other] states to adopt civil union or domestic partnership laws” that would provide many if not all of the legal and tangible benefits of marriage to gay couples.  Further, it said, the panel decision “calls into question the constitutionality of the traditional definition of marriage in other states in this circuit that have adopted such laws”- citing laws in Hawaii, Nevada, and Oregon.

States, the proponents said, would be forced if the panel ruling is upheld “to make an all or nothing choice between retaining the traditional definition of marriage without any recognition of same-sex relationships and radically redefining an age-old institution that continues to play a vital role in our society.”

The Circuit Court panel, in striking down Proposition 8 by a 2-1 vote, concluded that the only purpose served by the ballot measure was to show disrespect for an unpopular group in society, in effect proclaiming that same-sex couples had a relationship of less worth than that of opposite-sex couples.   The proponents’ petition argued that the accusation against California voters who approved the measure was false, and was “especially unfair” given how generous California has been in extending benefits other than marriage itself to same-sex couples.   Moreover, it said, there are millions of Americans who believe in equal rights for gays  and lesbians “but who draw the line at marriage.”  It cannot be, the document argued, that all of those people dishonor gays and lesbians.    California, the document said, is “one of the nation’s most gay-friendly states.”

It noted that 28 other states have amendments in their state constitutions that reserve marriage for opposite-sex couples, and yet the Ninth Circuit panel majority treated Proposition 8 as uniquely vulnerable to constitutional challenge.   “Surely California’s generous domestic partnership laws do not put Proposition 8 on a weaker constitutional footing than the marriage laws of the federal government and the numerous states that provide little or no recognition or protection to same-sex couples and their families.”

The petition strongly assailed the panel majority for concluding that Proposition 8 was unconstitutional because of its “timing,” coming shortly after the California Supreme Court had upheld Proposition 8 under the state constitution.   The panel had ruled that this timing showed that what California’s voters intended was to take away a right that same-sex couples had just won, and it was this withdrawal that violated the federal Constitution.

On the merits of California voters’ choice to reserve marriage to opposite-sex couples, the petition argued that this was justified by the unique capacity of opposite-sex couples to have children.  That, it said, was a “distinguishing characteristic” of heterosexual marriage that justified treating it as a compelling state interest as it regulates the institution of marriage.   This child-bearing capacity, the proponents asserted, has been recognized and protected in all ages as “fundamental to the very existence and survival of the human race.”   It added: “That existential social purpose is, and always has been, to channel potentially procreative relationships into enduring, stable unions for the sake of responsibly producing and raising the next generation.”

This, it asserted, “is not a hard question.”

The second part of the new petition for further review targeted now-retired U.S. District Judge Vaughn R. Walker, who had presided over the constitutional lawsuit against Proposition 8.   After the trial was over and he had decided the case against the ballot measure, he publicly revealed that he had been in a long-term relationship with another man.   The backers of Proposition 8 contended that, since he may some day want to marry his partner, he had a conflict of interest in the controversy over Proposition 8.   His failure to disclose that relationship, and his potential personal benefit from this very lawsuit, disqualified him from deciding the case, and so it should be wiped out, according to the petition.

However, the petition devoted only three pages of its 52 to this argument, contending that Judge Walker in barring enforcement of Proposition 8 throughout California had “conferred upon himself and his partner the right to marry….His participation and his refusal to disclose his long-term same-sex relationship was contrary to fundamental maxims of judicial propriety.”

The two same-sex California couples who have so far successfully challenged the constitutionality will be able to respond to the rehearing petition, under federal court rules, only if the Circuit Court asks for a response.  Under the norms of court practice, the rehearing petition would not be granted unless the couples had had a chance to argue in defense of the panel majority’s ruling.    In the meantime, while the Circuit Court ponders the new petition, the panel’s order to put its ruling into actual effect — that is, the issuance of the mandate — will be on hold.


Posted in Cases in the Pipeline, Featured

Recommended Citation: Lyle Denniston, Prop. 8: New plea in Circuit Court (UPDATED), SCOTUSblog (Feb. 21, 2012, 6:26 PM), http://www.scotusblog.com/2012/02/prop-8-new-plea-in-circuit-court/