February 9, 2012
By Adam Bink
In today’s Los Angeles Times, ProtectMarriage.com 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 ProtectMarriage.com, 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 ProtectMarriage.com 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 ProtectMarriage.com going forward.