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Prop. 8: A slow journey to the Court?


Three years and three months have now passed since California voters amended their state constitution with Proposition 8, banning same-sex marriage throughout the state.  The first legal challenge began the next day, and others followed — first in state court, then in federal court.  Many who have been following the case have assumed, perhaps from the beginning, that the controversy would ultimately reach the Supreme Court.  After the ballot measure was struck down this month by the Ninth Circuit Court, a California newspaper, the Orange County Register, asked: “Next stop: the Supreme Court?”  Maybe not, or, at least, maybe not for a while.

The Ninth Circuit Court has a system (in some ways peculiar to that court) allowing other judges potentially to second-guess a three-judge panel’s decision like this one, and the system does not really depend upon what the lawyers involved ask.  The Court can go en banc on its own, in a limited form, and then it can go en banc once again, in a broader form.   It might do so in reaction to a request from some of the lawyers involved, or it might do so on its own without waiting for a request.  Either way, it could take a considerable amount of time before there is something final to take to the Supreme Court in Washington.

Those who sponsored Proposition 8, and got it approved with a 52.3 percent majority vote among California voters on November 4, 2008, have said they are studying their options, but they definitely have already committed themselves to challenging the three-judge panel ruling at some higher level.   There have been some hints, among some in that camp, that they would rather go on to the Supreme Court now, and bypass further review in the Ninth Circuit.

The further legal outlook for Proposition 8 may start to become clear in a matter of days.   The panel’s decision nullifying that measure is still on hold, so no same-sex couples in California could get a marriage license for the time being.  The successful challengers of the measure have said they will ask the panel to lift that stay, so that gay weddings could begin anew (some 18,000 couples got married in a window of time when that was legal).  If the panel grants that request, the backers of Proposition 8 might rush to the Supreme Court to ask that the stay be put back into effect.  That would be a quick option to get a first indication of where the Supreme Court might stand on this dispute.

But if that scenario over a stay issue does not play out, the proponents of Proposition 8 do have the option of trying first for further review in the Ninth Circuit.   They do have that option — unless, that is, the Circuit Court’s active judges preempt that choice (active judges are those currently sitting on the court who have not taken senior status while continuing to serve).

Under federal rules applying to all Circuit Courts, a majority of the active judges can either order an en banc review in response to a request from lawyers to do so, or it can order it on its own.  The effect of a vote in favor of such review is to set aside the panel decision, so that there is no final ruling of the Circuit Court until the en banc court finishes with it.   Under a special local rule that only the Ninth Circuit has, only 11 of the 25 currently active judges on the full court might sit on a “limited” en banc court — the more common kind — or, all 25 of them might join in on a “super” en banc court.  (There are actually 44 judges serving on the Ninth Circuit, but 19 of them are doing so in senior status and can’t vote on en banc matters; the Court has four vacancies.)

Under that local rule, if the court is thinking about going en banc, and no one has asked for it, it ordinarily will give the lawyers involved an opportunity to comment on whether they think the court should go that route.  If such further review is sought by a petition, the other side usually will get a chance to comment before the court does go en banc.

Another complicating factor — and one that could stretch out the review in the Ninth Circuit — is whether the en banc court would ask for new written briefs.   An en banc court can proceed just on the briefs filed in a three-judge panel proceeding, but it can seek new arguments on its own.

Although the Ninth Circuit is generally considered to be a liberal court, and thus might not be thought very eager to second-guess the panel’s decision against Proposition 8, the full court has some judges with strongly conservative views, and if only one of them asks for a vote on en banc, a vote would be taken to see how a majority feels about that.   It might be only a temporary victory for a judge who thinks the panel got it wrong, but a vote to take it to a fuller court would nullify the panel ruling.  When the court announces it has voted to go en banc, its order will note that the panel decision has been set aside, and cannot be cited as precedent in any other case.  In effect, the fuller court is starting from scratch, reviewing — just as the three-judge panel had — the District Court decision that is being challenged on appeal.

All of this process may take many months.   If the Proposition 8 case does unfold along these lines, an appeal to the Supreme Court might not arrive in Washington until well into 2013, and might not go to a final decision by the Justices (if review is granted)  until sometime in 2014 — perhaps nearly six years after Proposition 8 was put to the voters.  The slowly-turning wheels of justice might have cut its pace down considerably.

(The blog thanks an interested reader, a close observer of the Ninth Circuit, for pointing out the potentials for further review before that tribunal.)






Recommended Citation: Lyle Denniston, Prop. 8: A slow journey to the Court?, SCOTUSblog (Feb. 10, 2012, 6:30 PM),