Prop 8 appeal heading to full circuit

Attorneys defending California’s same-sex marriage ban are filing a petition today (February 21), seeking full 9th Circuit review of an appeals panel ruling that Proposition 8 is unconstitutional.

A three-judge panel of the 9th Circuit U.S. Court of Appeals ruled February 7 that Proposition 8 violates the federal constitution’s guarantee of equal protection and due process of the law. Many legal activists said the ruling was crafted in a way to maximize reliance on previous Supreme Court ruling and, thus, survive what many believe is an inevitable appeal to the nation’s highest court.

Attorneys defending Proposition 8 could have taken their appeal of the panel’s decision directly to the U.S. Supreme Court, but failure to exhaust all lower court appeals can diminish the probability that the high court will accept review.

The 9th Circuit has handled the case, thus far, on an expedited basis and, if the full circuit does so, it will likely hear oral arguments this year. And while a full circuit court (“en banc”) review in most circuits involves all active judges on the circuit’s bench, in the large 9th Circuit, it typically means 11 of the court’s 28 judges.




One Response to Prop 8 appeal heading to full circuit

  1. Sam says:

    Due respect, but you’ve missed one INCREDIBLY important detail. En banc rehearings don’t just happen simply because someone asks. There are fairly strict criteria that must be met before the full Circuit grants rehearing. Even if we set those criteria aside, backers of Prop 8 will have to convince a majority of active judges on the Ninth Circuit that there’s a real need to do this all over again. Considering that Randy Smith, probably THE most conservative judge on the Circuit only barely sided with Prop 8 supporters, there are probably a lot of conservatives on the Circuit who won’t want to repeat this exercise. As for the liberals and moderates, they constitute a majority of the Ninth Circuit, and there’s a strong possibility they won’t want to take the chance of an en banc panel overturning this one. A rehearing is far from a done deal here.

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