By Scottie Thomaston
The judges sitting in the Ninth Circuit have issued a new order in the Perry v. Brown case today. The full panel of Ninth Circuit judges have decided that en banc rehearing of the three-judge panel’s decision will not be granted. This comes after a months-long wait: the proponents of Proposition 8 announced their intention to seek en banc review of the Ninth Circuit’s three-judge panel decision on February 21 of this year. As we noted yesterday, the decision to deny rehearing of the case with a new, randomly-selected eleven judge panel means that Judge Reinhardt’s opinion, which was joined by Judge Michael Daly Hawkins and garnered a dissent by Judge N. Randy Smith, either way, will likely be appealed to the Supreme Court where the proponents will now likely file a petition for certiorari, asking them to review and possibly overturn Judge Reinhardt’s opinion for the Ninth Circuit’s panel of three judges.
An en banc rehearing at the Ninth Circuit Court of Appeals is much different from other circuits. Generally, en banc means that the entire court will rehear the case, with all judges in the circuit participating. But the Ninth Circuit has an inordinately large number of judges, so they have a procedure wherein they have an ‘en banc panel’ consisting of eleven judges: ten randomly-chosen judges plus the Chief Judge (at the Ninth Circuit that is Alex Kozinski) presiding. If rehearing had been granted, the randomly selected panel could have heard arguments and issued new briefing in the case or they could have decided to forgo that and issue a new decision without it.
Now that en banc rehearing was denied, the proponents have 90 days to file a petition for certiorari to the Supreme Court, seeking review of the decision striking down Proposition 8. It’s likely that Justices at the Supreme Court would have their conference to take up the petition and decide whether to grant review or not sometime after their summer break in October. Oral argument would follow a few months later, and then a final decision would be issued by June or July 2013.
Judge O’Scannlain has filed a dissent from the denial of en banc rehearing joined by Judges Bybee and Bea, and in it he discusses his belief that Judge Smith’s dissent was correct. He says that “we have now declared that animus must have been the only conceivable motivation for a sovereign State to have remained committed to a definition of marriage that has existed for millennia.”
No one is certain if the Supreme Court would grant review of the case as it currently stands. Judge Reinhardt’s opinion for the three-judge Ninth Circuit panel is very narrow and the holding is specific to California’s unique legal circumstances. A denial of rehearing in this case leaves the decision California-specific and there may not be four Justices – the number needed to grantcertiorari – who want to visit an issue that’s so limited in scope. On the other hand, the panel’s decision did strike down an amendment to a constitution of an enormous state involving a contentious issue. And allowing gay couples to marry in California would nearly double the amount of people in the United States who live in an area that allows same-sex marriage.
This process has gone on for so long. The complaint was initially filed on May 22, 2009 and the trial began on January 11, 2010. Judge Walker didn’t issue a decision in the case until August 4, 2010. The Ninth Circuit’s ruling came much later, with the three-judge panel issuing its ruling on February 7 of this year. Now the Perry case is entering its final phase.
Now that the Ninth Circuit has denied en banc rehearing of the three-judge panel’s decision, the case will face its final test soon, at the Supreme Court, as the proponents are widely expected to seek review of the three-judge panel’s decision. If the proponents do file a petition for certiorari the Justices will look at the petition in a conference later this year where the final decision will be made: review the case or let the Ninth Circuit’s decision be the final word in this long journey to decide the fate of the odious Proposition 8. It promises to be an exciting year.