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The Prop 8 trial and the strategy of going forward

9th Circuit Court of Appeals Prop 8 trial

By Adam Bink

In today’s Los Angeles Times, gives a hint at their next move:

ProtectMarriage, the Christian conservative sponsor of Prop. 8, is expected to announce next week whether to ask a larger panel of the U.S. 9th Circuit Court of Appeals to reconsider Tuesday’s ruling, a decision that could postpone U.S. Supreme Court review for months.

Andy Pugno, general counsel for ProtectMarriage, noted that a judge on the 9th Circuit might independently call for fellow jurists to vote on whether to review the ruling. Whether such a vote would gain majority support remained doubtful, law professors said.

Signs point to “a judge” being one 9th Circuit Judge Diarmuid O’Scannlain, a Reagan appointee, the same judge who not only voted to throw out Judge Phillips’ decision in the Log Cabin Republicans case against Don’t Ask, Don’t Tell, but took it upon himself to write a 10-page “concurring opinion” in which he chided the Court on what he called a “guidepost for responsible decision-making” when it came to basing decisions on the landmark Lawrence v. Texas decision overturning anti-sodomy laws, as Judge Phillips did in her decision. Lyle at SCOTUSblog notes:

Judge O’Scannlain, however, wrote explicitly that “Lawrence did not establish any fundamental right.”  It did not give lower courts any basis, the judge added, for creating any new fundamental rights for gays.  He lambasted  Judge Phillips for the legal rationale she had used for nullifying the military gay ban, contending that she had not followed the formula that the Supreme Court itself had laid down for judging claims of violations of so-called “substantive due process” guarantees.

Although the case had to be dismissed as moot, the judge said, “if we had been able to reach the merits…, I would have been obliged to reverse.”  He went on to make a further argument for “judicial self-restraint” whenever a court is asked “to break new ground in the field of substantive due process.”

It is not a common practice for federal judges, when a case has come to a formal end without a final ruling on the merits, to say how they would have voted.  That Judge O’Scannlain did so suggested how affronted he was by Judge Phillips’ ruling.

Back to the Prop 8 trial:

A rehearing would permit the 9th Circuit to reframe the legal case and deliver a ruling that would affect marriage laws in other states, the outcome preferred by ProtectMarriage’s supporters, Pugno said. Tuesday’s ruling was limited to circumstances in California and would not affect other states.

A ruling by a larger 9th Circuit panel also “would raise the profile of the case and increase the attention the Supreme Court would give to it,” Pugno said.

But he cautioned that his group’s legal team was still debating strategy. In the past, ProtectMarriage lawyers have said they wanted to get to the Supreme Court as quickly as possible. “Everybody knows the Supreme Court is almost certain to review this case,” he said.

Here, there is an interesting split. As it stands, many consider the Perry v. Brown case, after Tuesday’s 9th Circuit panel ruling with a more limited scope on Prop 8 and not marriage equality or other states, to not be the kind of case the Supreme Court would take up. If, which is leading the legal defense of Prop 8 after Gov. Brown and Attorney General Harris declined to do so, wanted to “raise the profile” of the case to get the Supreme Court to (a) review it, and (b) issue a broad ruling that there is no fundamental right to same-sex marriage in the U.S. Constitution, they may have to try and get an en banc rehearing.

On the other hand, another point against seeking an en banc rehearing is that such a hearing can take up to another year in the trial before the Supreme Court agrees to review, if it does at all. Many legal experts believe delay may actually decrease the chances of winning at the Supreme Court. Delay means the public opinion/polling trend in favor of same-sex marriage continuing its rapid ascent. Delay is likely (though not certain) to mean more states legalizing same-sex marriage (Maine, Washington, Maryland, New Jersey being among the possibilities) and/or defeating constitutional amendments opposing same-sex marriage (Minnesota, North Carolina). Again, none of that is certain, and same-sex marriage advocates may lose across the board in the states this November, but the trend lately is towards more states legalizing same-sex marriage. The Supreme Court may take note of all of that.

There is also the issue of a stay in that there may be a case to be had for the Courts to lift the stay on the case and thus allow same-sex couples to wed again in California if the case were set to drag on for another year before the Supreme Court considered review.

UC Irvine Professor Erwin Chemerinsky opines on the likelihood of an en banc rehearing:

Democratic appointees outnumber Republican appointees on the 9th Circuit, UC Irvine Law School Dean Erwin Chemerinsky observed. “I have no doubt that there is a core group of conservatives that will want to go” for reconsideration, he said. “But I can’t imagine they will have the votes.”

Chemerinsky said he asked his law students Wednesday whether they would recommend that ProtectMarriage seek a rehearing in the 9th Circuit or go to the Supreme Court. “They split,” he said.

UC Davis constitutional law professor Vikram Amar said it made sense that ProtectMarriage would want a 9th Circuit review, in order to get “two bites of the apple.”

We’ll have to see, but the bottom line is that there are a lot of difficult (and not very good) options for going forward.


  • 1. alleninsb  |  February 9, 2012 at 11:47 am

    Excellent analysis.

  • 2. Leo  |  February 9, 2012 at 12:00 pm

    Ann, do you know if requesting en banc review, as such, affects the likelihood of certiorari? I.e., is SCOTUS any more likely to get involved if all other options, including rehearing, have been exhausted, than without it?

  • 3. Sagesse  |  February 9, 2012 at 12:06 pm

    Regardless of what they say their reason is, if they can get en banc review they delay marriage equality in CA for a year before going to the Supreme Court. During that time, they haven't 'lost', and 13% of the US population does not have marriage equality. The war of words can go on through the 2012 election season.

  • 4. Bryce from DC and KS  |  February 9, 2012 at 12:16 pm

    I'm with Ann. I am totally confused. After having just lost in court, what could they possibly have to gain from trying to get a broader decision? And why would they think that a broader decision–in anyone's favor–would be a possibility in the 9th Circuit? And if they get a broader decision, and the SCOTUS wants to make as few waves as possible, who's to say they wouldn't just narrow it back down?

  • 5. bythesea  |  February 9, 2012 at 12:23 pm

    I think they are calculating that they won't get a appeal on these narrow grounds to SCOTUS and they are probably right. However, I doubt they will be granted an en banc hearing either. Here's hoping…

  • 6. mattjustleft  |  February 9, 2012 at 12:41 pm

    Ann and Bryce – work backwards. a. This USSC isn't likely to affirm marriage equality. b. Thus, in the wake of the constitutional overturn of Prop 8 by the 9th Circuit, the best thing for proponents of Prop 8 is to get to the Supreme Court. c. As written, the 9th circuit opinion is so narrowly tailored that the court is, according to many experts, unlikely to hear it (aka, more likely to let the decision of the 9th circuit stand, finally and permanently overturning prop 8. d. With an en banc rehearing, proponents probably don't have much of a chance of overturning the original 9th circuit opinion, but there's a possibility (not sure how remote) that the en banc holding will reject the narrow tailoring and instead affirm Judge Walker's much-broader constitutional interpretation. This could potentially have the effect of challenging same-sex marriage bans in several more states that are within the 9th Circuit's jurisdiction. e. This broad effect makes it more likely that the Supreme Court will hear the appeal, a much-riskier proposition for same-sex couples than for proponents of Prop 8.

  • 7. iSarcasm  |  February 9, 2012 at 1:01 pm


    "All we need now is one of those earth movers. You know the ones. The massive ones that dig mega mines? Yeah, if we can get a few of them on board then we can REALLY dig ourselves in!!"

    (Whispered)"God help us!"

    "That's what we're planning on!"

  • 8. Jon  |  February 9, 2012 at 1:15 pm

    "a. This USSC isn't likely to affirm marriage equality."

    Your initial premise is incorrect. Kennedy is one of the top ten most conservative justices in history and may not be in favor of gay marriage–point to the Prop 8 proponents. Butt Kennedy wrote Lawrence and Romer and the 9th Circuit applied his reasoning in this case–point to the Prop 8 opponents.

    Conclusion: flip a coin to see which way Kennedy goes.

    Both sides should fear going to the Supreme Court right now.

  • 9. rocketeer500  |  February 9, 2012 at 1:16 pm

    Ann, I agree with you about the standing issue. However, if an en banc review is allowed, and the full panel reverses the current standing issue, I think that would cause an immediate review by the Supreme Court.

    However, saying that, I think Pugno and Co. run a greater risk of reversing the standing issue at the Supreme Court level, as opposed to the en banc panel review–based on the English Only case in Arizona. While I don't think the Supreme Court will take this case, as it is so narrowly tailored, if they do, I don't think they'll rule on the Prop 8 issue, as it's strickly a Califonia issue. I think they would opinion on a much broader issue of the tyranny of the majority vote–namely the Initiative Process–as the Initiative Process is anti-Federalist and anti-Republic in many aspects, which runs counter to the Constitution. Just my thoughts. :)

  • 10. Jamie  |  February 9, 2012 at 1:18 pm

    I'd guess that if they delay further there is a good argument to lift the stay and that the 9th Circuit would do so. An emergency petition for extension of the stay would then go to Justice Kennedy who could deny or issue a stay on his own or ask the full Supreme Court for consideration. Remember what happened when petitioners wanted to stay marriages from occurring in DC? Justice Roberts (yeah, a "conservative" said nope without even asking the full court). I'd bet that Kennedy would do the same.

    "Protect" Marriage really has to be asking themselves if this is a decision worth appealing at all. I have to think that both Roberts and Kennedy aren't really interested in hearing this given the current decision. I think the full 9th circuit knows this, and they aren't going to issue a broader ruling even if they agree to en banc review.

    Seriously. Pugno must be feeling the weight of that rock and hard place that he's caught between.

  • 11. Jamie  |  February 9, 2012 at 1:20 pm

    A broader decision that would impact every state in the 9th Circuit would be sure to be considered at the Supreme Court. Protect Marriage thinks they have 5 justices that would say there is no constitutional right to gay marriage. If they get a broader ruling to the Supreme Court, they think there is a greater chance that the Justices would strike it and Proposition 8 (and other bans against equal rights) would live on.

  • 12. bythesea  |  February 9, 2012 at 1:22 pm

    I agree, we have won and SCOTUS isn't likely to want to hear this case as it is such a narrow ruling. Even if they do and uphold they could easily do so under the narrow reasoning from the 9th, so it is better to have the case here and reestablish ME in CA sooner rather than later. It will take another legal avenue to establish a federal right to marry imo, but it will happen.

  • 13. Leo  |  February 9, 2012 at 1:23 pm

    Another question for experts: if the Ninth Circuit grants rehearing en banc, is it possible for them to affirm the panel's decision on narrow grounds, but also finally overrule High Tech Gays, on which Judge Smith's dissent relies? Or would that only be possible as part of a broader ruling?

  • 14. Jamie  |  February 9, 2012 at 1:25 pm

    Even if the en banc panel issues a broader decision, the Supreme Court is still free to affirm the decision issued earlier this week, or any number of alternatives. It's not like they travel back in time when this decision never existed.

  • 15. Bryce from DC and KS  |  February 9, 2012 at 1:26 pm

    Yeah Matt, I get that analysis, but if the SCOTUS wants to make a narrow ruling, they will do so. Regardless of whether the en banc panel did.

  • 16. Kevin  |  February 9, 2012 at 1:42 pm

    I think that en banc review may make it more likely for the S Ct to grant cert, but only minimally so. The far more pressing concern for that body would be resolving a split in circuit opinion about the issue. Protect Marriage will likely argue that Reinhardts opinion cannot be cabined to the specific circumstances of California. On the other hand, the opinion clearly envisages itself as minimalist and limited. This limitation would not create the kind of jurisdictional split that normally requires S Ct intervention.

  • 17. James Sweet  |  February 9, 2012 at 1:46 pm

    Fascinating. There are some dynamics here (for the bad guys) that I had not anticipated.

    If they were smart (but somehow still had the same stupid goals) then they would go for the en banc either way. Although, all other things being equal, a delay weakens their chances at SCOTUS, I think the case is unwinnable for them given the current ruling. The en banc is a long shot, but if they manage to get it re-heard and extract a sweeping opinion out of the 11-judge panel (whether or not it is in their favor or not), then I think their net odds at SCOTUS go up: they take a ding from the delay, but it is more than made up for by the boost in having a less constrained opinion to appeal.

    Both ways are a long shot, though. I think they've pretty much lost this one.

  • 18. Rick  |  February 9, 2012 at 1:48 pm

    What about the opposite side of the coin? Will the Olson/Boies team want to appeal the decision on standing? If so, en banc or to SCOTUS? I would suppose not, since that might only cause an undue delay.

  • 19. iSarcasm  |  February 9, 2012 at 1:49 pm

    What does anyone want to bet that Pugno is right now reading this blog, and the comments in particular, desperately trying to figure out what to do?

    Hi Andy! (chuckle)

  • 20. James Sweet  |  February 9, 2012 at 1:50 pm

    I'm not an expert, but I don't think so. The Reinhardt decision was very careful to only ever employ rational basis. If I understand correctly, in order to overrule High Tech Gays the court would have to explicitly use heightened scrutiny. While conceivably they could issue an opinion that was narrow in the sense that it only applied to California, and yet applied heightened scrutiny, I think the Supremes would be more inclined to grant cert for an appeal of such an opinion.

  • 21. Leo  |  February 9, 2012 at 1:59 pm

    Well, Judge Walker's ruling said, on the one hand, that gays and lesbians satisfy the requirements for a suspect class, but at the same time, that he didn't need to use heightened scrutiny because Prop 8 doesn't pass rational scrutiny. I'm wondering if the Ninth Circuit could do something similar. (Maybe not.)

  • 22. Juli  |  February 9, 2012 at 2:05 pm

    Why does it seem to me that Proponents of Prop 8 are just doing whatever they can to delay the case? It's as if that is their one and only tactic, since they didn't actually have a case.

  • 23. Sheryl_Carver  |  February 9, 2012 at 2:33 pm

    I think it seems that way because that is exactly what they are doing.

  • 24. Steve  |  February 9, 2012 at 2:33 pm

    One of the DOMA cases is the best bet for getting heightened scrutiny applied. The DoJ has said several times now that sexual orientation falls under heightened scrutiny. Still, if SCOTUS thinks that DOMA fails even rational basis, that's all they will decide on.

  • 25. Chris S  |  February 9, 2012 at 2:37 pm

    I sure hope Andy doesn't find out about the sacred fire ants in Texas. Ancient Native American legends describe a species of Texas fire ant whose poison renders its victims unbeatable in a court of law. Those who would claim this power must bury themselves up to the neck in a colony specific to this particular fire ant, and remain there until sunset of the following day. No one is sure where in Texas this species is located, though, so it might take a few tries to find the right ant hill.

    It would be disastrous for us if Andy or any of the others on the Prop 8 legal team ever found this anthill. They'd suddenly recognize the one easy thing they'd have to do to win this case, and the equality movement would probably never recover.

  • 26. Shannon  |  February 9, 2012 at 2:37 pm

    You gotta wonder about their LONG-long-term strategy as well… for even if (God forbid) the Supreme Court ended up reversing the 9th circuit and upholding Prop 8, then what? By then there could be 7 or 8 states with same-sex marriage, DOMA might be repealed or struck down, and public opinion will undoubtedly be more in our favor. A new amendment could pass in California reversing Prop 8.
    What will do then? It seems like they're continuing to fight just for the fight. I don't see what their end game is. They're on the losing end of a slow but steady trend, and their arguments aren't really helping them in the long term.

  • 27. Leo  |  February 9, 2012 at 2:46 pm

    I agree, but it will be at least another year or two before a DOMA case gets en banc hearing in the Ninth, whereas Perry may be heading there now.

  • 28. MightyAcorn  |  February 9, 2012 at 2:53 pm

    Can SCOTUS grant cert to only one issue? Like, letting the narrow ruling about Prop 8 stand but taking up only the standing issue?

  • 29. Kevin  |  February 9, 2012 at 2:55 pm

    An interesting legal note with regard to this, questions of jurisdiction and justiciability (standing) can be considered by a court at any time. Thus, if either Olson or Cooper appeals to the SCOTUS, that court could simply resolve the issue by pointing to Arizonans for Official English, hold that proponents lack injury sufficient to support standing in Federal Ct. and dispose of the issue nicely without ever reaching the merits.

  • 30. Bruce  |  February 9, 2012 at 2:57 pm

    "Creating new rights for gays"???? Oh, you mean: giving gays the same fundamental human rights that OTHER Americans already have. No– couldn't POSSIBLY do that without civilization completely crumbling. Where the hell does Judge O'Sacannlain get off? Talk about "judicial activism"!!

  • 31. Lymis  |  February 9, 2012 at 3:04 pm

    I've been saying for quite a while now that most of these cases are less intended to actually win or convince anyone, but rather to given them a forum to raise the fears of the people who send them money – they know they are going to lose eventually, but in the meantime, the higher the profile, the more cash intake.

    Because they sure aren't spending the money on brilliant legal minds.

  • 32. Lymis  |  February 9, 2012 at 3:07 pm

    if you look at NOM, they're focusing less and less on actually trying to prevent marriage equality and more and more on lawsuits (or hysteria about the need for lawsuits) to protect bigots who refuse to comply – they are gearing up to "defend" the people who won't want to treat gay people equally once the courts or legislature requires it. My guess that will be a wider trend as they start losing on marriage equality.

  • 33. rocketeer500  |  February 9, 2012 at 3:07 pm

    SCOUTS could grant cert only to issue on Article III standing opinion. That's primarily what they did with English Only vs. Arizona. But, but denying standing would lead the Prop 8 case to fail, and our side would win.

    Just because Judge Reinhardt found standing with proponents, based on his methodology, doesn't mean that SCOUTS would not weigh-in with their interpretation of Article III. This scenario would render Pugno and Co.'s argument pointless–not a bad thing.

  • 34. bythesea  |  February 9, 2012 at 3:23 pm

    Good point, obviously they are rearranging their "fight" to milk more money from dumbass donors since they are losing their war on equality rather quickly. A decade from now ME will be a fact in most if not all of the country and will be a politically dead issue, but these little naggling pseudo-controversies over the "rights" of tulip vendors to religiously object etc are milkable for the long term.

  • 35. Steve  |  February 9, 2012 at 3:53 pm

    The MA case is the one that will ultimately get to the Supreme Court. It's currently at the appeals level

  • 36. Larry  |  February 9, 2012 at 4:19 pm

    That was also the basic analysis used in Romer v Evans and Lawrence v Texas. In both cases, SCOTUS found that Colorado's repealing antidiscrimination and Texas's anti-sodomy law failed rational basis, so there was no need to even determine if heightened scrutiny would apply. Judge Reinhardt used the same logic.

  • 37. Glen  |  February 9, 2012 at 4:56 pm

    Do you have any idea how much money individual Mormons sunk into Proposition 8. At least one of them put in their entire life savings into it (or so the story goes). Yeah, that's how insanely they want to impose their religious beliefs on everyone. Mormons were instructed to pony up, and that's what the vast majority of them did.

    So I suspect they will do everything in their power to keep it alive.

  • 38. cr8nguy  |  February 9, 2012 at 5:09 pm

    does anyone know where we are on the 1st and 2nd circuit cases??

  • 39. Bob Barnes  |  February 9, 2012 at 5:45 pm

    Lymis, this is what they consider as proof that marriage equality does cause harm. Of course it's far fetched and redicolous, but it's getting a lot of play.

  • 40. SoCal_Dave  |  February 9, 2012 at 6:00 pm

    Can anyone help explain this statement, please? …
    "Andy Pugno, general counsel for ProtectMarriage, noted that a judge on the 9th Circuit might independently call for fellow jurists to vote on whether to review the ruling. "
    It makes it sound as if a 9thC judge could initiate a review (?!)
    If Protectmarriage asks for en banc, don't the judges *have to* vote to decide whether to review?
    How would one judge "call for" a vote?
    Am I reading too much into this?

  • 41. SoCal_Dave  |  February 9, 2012 at 6:17 pm

    Thanks, Ann. So then theoretically, do you think the 9th C judges could just decide no, we're not doing this? Before Protectmarriage even asks them to? Or conversely, they could say "we *want* to review this case" even if Protectmarriage would have rather skipped it and gone straight to USSC?
    I don't suppose either is likely but the possibility sure would throw more variables into the mix.

  • 42. Mormon Mother  |  February 9, 2012 at 7:56 pm

    Just a reminder that Mormons were not the only contributors and certainly is not the only religious organization that does not want marriage equality.

  • 43. Waxr  |  February 9, 2012 at 9:49 pm

    We should work to see that the effort to overturn Prop 8 in the November election is successful. If prop 8 is overturned in the ballot box, then Perry v. Brown will be a dead issue and neither the 9th Circuit en blanc, or SCOTUS will consider it. Thus we will have same sex marriage again within a year, and the 9th Circuit Court's decision will still be there as a precedent for other courts to consider.

  • 44. Sheryl_Carver  |  February 9, 2012 at 10:07 pm

    No, Waxr, we should not be going to the ballot box.

    This has been discussed here before. If Prop 8 is repealed before the legal challenge has an ending, all the gains we've made can be rendered moot, as Log Cabin Republicans challenge to DADT was when Congress voted to end DADT. And we are once again in the cycle of voting on our civil rights. Yes, it will likely be several months if not a couple years before the Prop 8 legal journey is done, but we MUST wait for that to happen.

    I, for one, will do whatever I can to see that the repeal effort never makes it onto the ballot in Nov.

  • 45. Tasty Salamanders  |  February 10, 2012 at 12:26 am

    While I am no expert on such things, in LCR v. US the repeal was enacted while the first appeal was ongoing. Now for the Prop 8 case and there is now a binding precedent on lower courts in the 9th Circuit. I admit it isn't much of a difference but it might mean the difference between the appeals being rendered moot and the case being vacated.

    (Does anyone who know more able to say anything on this?)

  • 46. James Sweet  |  February 10, 2012 at 9:58 am

    FWIW, I thought the 9th Circuit's ruling on standing was impeccable. To be clear, I do NOT think the California Supreme Court's ruling was a good one, but given the California court's decision, the 9th Circuit decided correctly I think.

    Their logic was basically that while state law is not generally able to determine standing in federal cases, there is an exception if the State has standing. If the State has standing, then the State has unlimited leeway to determine who can represent them. If the California constitution allowed the State to be represented by an angry gerbil in a given case, then in any federal case which recognized the State of California as having standing would automatically grant standing to the angry gerbil.

    I think that's pretty airtight. Now, I think the California Supreme Court was probably wrong to allow the D-I's to represent the state; and moreover I think the entire initiative process is completely insane — what kind of effing constitution can be amended by a bare majority in a popular vote?!? But given established California law, I think the 9th Circuit ruled correctly on standing.

  • 47. steven  |  February 10, 2012 at 10:38 am

    as right now 9th circuit's and Walker's decisions are binding till they are uphold or throw out.. i think

    what does he means the REFRAMING THE CASE?

  • 48. Jeff  |  February 10, 2012 at 11:13 am

    Mormons were the largest group of contributors, so you must bear a greater portion of the blame for Prop 8. You have religious liberty and free speech, but don't lie about the role of LDS members in spreading hate in CA.

  • 49. Melissa  |  February 10, 2012 at 1:59 pm

    I agree with Ann. Jeff, that's an appalling position, and we should never condemn any entire group for the actions of a few. Your position isn't so different than blaming every Muslim for 9/11. No one shold have to bear "a greater portion of the blame" – that's the wrong attitude. We should work with all of our allies towards the common goal of equality, not make people feel bad for the decision their church makes.

  • 50. Adam Bink » Blog Ar&hellip  |  April 16, 2012 at 4:19 pm

    […] The Prop 8 trial and the strategy of going forward, Prop8TrialTracker, February 9, 2012: This is a piece examining the potential legal strategy of vis-a-vis the 9th Circuit Court of Appeals (en banc) and the U.S. Supreme Court following their loss with a 3-judge panel from the 9th Circuit ruling that Prop 8 is unconstitutional. […]

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