Prop 8 Undergoes Another Review, Not Going To Supreme Court Just Yet

Although it initially seemed like Prop 8’s next step in its legal journey was the Supreme Court, it would appear that it’s making at least one more stop before it gets there. Protect Marriage, the group defending Prop 8’s existence, has asked the 9th Circuit Court of Appeals to review the ruling made by a three-judge panel earlier this month, in hopes that they’ll overturn it.

“The panel majority’s decision conflicts with decisions of the United States Supreme Court and this Court, and consideration by the [full appeals] court is therefore necessary to secure and maintain uniformity of the court’s decisions,” wrote lead counsel Charles Cooper.

charles cooper

Cooper and his team have written a 52-page petition asking that the panel’s decision be reconsidered. Their petition doesn’t give much away in terms of what they might try to argue regarding Prop 8 in a court, but instead makes the claim that the thinking behind the panel’s recent decision is simply wrong. (The full petition is available online.)

“It is hardly surprising that every state and federal appellate court decision, including binding decisions of the Supreme Court and this Court, to address the validity of traditional opposite-sex marriage laws under the federal Constitution has upheld them as rationally related to the state’s interest in responsible procreation and child-rearing… The panel majority erred in breaking with the uniform and binding precedent upholding the constitutionality of laws adopting the traditional definition of marriage, and the Court, sitting en banc, should rehear this profoundly important case,”

It also, incredibly, re-states the assertion that Judge Walker should have recused himself from the original case because of his sexual orientation, an argument which has been shut down more than once by actual judicial authorities, but keeps raising its double-standard-ed head anyways.

What Protect Marriage is asking for is called an en banc review — technically this usually involves a review on the part of all of the active judges, which in the case of the 9th Circuit Court would be over 20 people. In this case, what’s being put into motion is called a limited en banc review, and will involve the chief justice and 10 active judges. A process like this usually lasts months; it will probably add some time onto Prop 8’s lifespan, and also means that the stay on performing marriages that was put into place after Judge Walker’s ruling will remain active.  It may take a while for the 9th Circuit Court to even decide whether to agree to perform the en banc review. But on the other hand, if the court performs the review and finds that the panel’s decision to strike down Prop 8 was correct, then it may be possible for marriages to resume in California again (although the consequences of the court’s decision would be limited to California).

It still seems very likely that this case will end up in the Supreme Court at some point, although it’s now less clear when exactly that will be. And it’s frustrating to continue to see this case continue to be hung up with more stops in more lower-level courts, especially given how narrow these rulings are going to be. But ultimately Protect Marriage and the people who support them can only delay justice, not stop it from coming. The generation of people who elected Barack Obama and at the same time saw their constitutional rights taken away from them in California will also see them restored, and probably much sooner than it makes the bigots who passed Prop 8 comfortable to think about. It’s only a matter of time.

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Originally from Boston, MA, Rachel now lives in the Midwest. Topics dear to her heart include bisexuality, The X-Files and tacos. Her favorite Ciara video is probably "Ride," but if you're only going to watch one, she recommends "Like A Boy." You can follow her on twitter and instagram.

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  1. I’m not going to lie, Prop 8 still confuses me a bit. If it’s been declared unconstitutional, and the US has a national constitution as opposed to a federal one, how come it’s not unconstitutional nationwide and only applies to California?

    But oy vey at the case being dragged out this long. The right seem to be getting increasingly desperate and going to any lengths to try and justify their implausible beliefs.

    • In the US, the federal government (i.e. what would be called ‘the state’ in lots of other countries) has a constitution, but so does each individual state, with the caveat that individual states’ constitutions (and other laws) cannot violate the federal constitution. In the case of Prop 8, the ruling was that it violates the constitution of California because it stripped a minority population of a previously held right. No judge has ever rules that Prop 8 (or any similar marriage ban) violates the US(i.e. federal) Constitution.

      Hope that makes sense!

      • In the US the Circuit Courts only have authority over regions so what they decide does not control what is done in other regions. The relationship between the Circuit Courts and the Supreme Court is sort of like the relationship between managers of individual stores and the general managers that control multiple stores. The store managers make decisions that control what people can do in their store, but they can’t control what people do in other stores. The general manager can control what is done in all the stores. The Ninth Circuit only covers California, Washington, Oregon, Alaska, Nevada, Arizona, Hawaii, Idaho, Montana, Guam, and the Northern Mariana Islands.

        I haven’t actually read the opinion, but from what I understand, the reason that the most recent ruling would only apply to California is that the Court didn’t actually say that it was unconstitutional to ban gay marriage. They said it was unconstitutional to go from allowing gay marriage to banning gay marriage.

        If the Supreme Court does not eventually hear the case, and the larger group of the Ninth Circuit decides the same way as the smaller group then gay marriage will once again be legal in California and Washington will not be able to change its mind and ban it.

    • While the Unite States Constitution applies all over the United States, State Supreme Court only applies to their states’ level on down. State-level Supreme Court interpreting a state law as unconstitutional keeps the whole decision in the state. Or they could be talking about California’s state constitution?

      I’m very tired and I want a latte and another couple slices of cheese toast, basically.

    • My vaguely-knowledgeable interpretation:

      1) This is a federal case involving federal issues. Prop 8 was already found by the California Supreme Court to not violate the California State Constitution. That was the end of that. Federal courts have no jurisdiction over state law or constitutional matters short of some very specific instances involving parties from different states, and when a state law/other legal provision implications federal law/the federal constitution. This case does involve whether Prop 8 violated the US constitution.

      2. However, I believe Ummm is right that the decisions have specifically involved the context of Prop 8 itself – that is, a situation in which a state granted a right like marriage to a group of people and then stripped it away. So it’s not really be-all-end-all about gay marriage – theoretically it would only apply where something similar has happened, and that would probably take its own court case unless the ultimate ruling is particularly broad (which, short of a replacement of a conservative justice on SCOTUS, I don’t see happening).

      3. But even if it were, the Ninth Circuit only has jurisdiction over a specific geographic area of the US. The decisions of the Ninth Circuit are not binding on any other circuit. This means, short of a Supreme Court decision on the matter, the law can be different in different federal jurisdictions. A decision from the Supreme Court, however, would make its decision binding on the whole of the US.

      • Thank you all, I understand it better now! It’d be pretty sweet if someone could point out that making gay marriage illegal violates the whole equality thing in the Constitution, but I’m a foreigner and clearly have no idea what I’m talking about~

  2. In more Supreme Court fodder, DOMA section 3 was ruled unconstitional Wednesday afternoon in US District Court. Section 3 is the part that defines marriage as between a man and a woman for federal purposes. Throwing it out wouldn’t force states to recognize same-sex marriages, but it would mean the federal government would have to for things like immigration hearings or social security payments. Ruling was handed down by Judge Jeffrey S. White (2002 Bush appointee).

    • Yes, and that decision was fantastic in that it addressed strict scrutiny and why it applies. Step by fact-ridden step, just to be specific. The best part was where the judge makes fun of BLAG’s [worst acronym ever] citing a 3 page article in slate–you know, total bullshit not peer reviewed etc…

      But district court holdings that something is unconstitutional are not really national precedent, even when you wish they would be…

  3. Anyone hear the latest news from Maryland? Same sex marriage is only a governor’s signature away from becoming law.

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