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.
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.