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Breaking: Prop 8 proponents will seek full 9th Circuit review

9th Circuit Court of Appeals Prop 8 trial

By Jacob Combs

Updated to include the petition for rehearing.

Metro Weekly reports that Charles Cooper, lead attorney for the proponents of Prop 8, has informed them that his team will ask the full 9th Circuit Court of Appeals to review the 3-judge decision that earlier this month struck down the marriage ban as unconstitutional.  Metro Weekly breaks down what happens next:

Usually, en banc review involves all of the active judges on the court, but the Ninth Circuit — due to the more than 20 active judges on the circuit — has adopted a unique “limited en banc” procedure in which all the active Ninth Circuit judges vote whether en banc consideration will be given. That will be the request made by today’s filing.

If a majority of the court supports en banc consideration, then the chief judge of the circuit, Judge Alex Kozinski, and 10 randomly selected appellate judges from the circuit will hear the en banc appeal, which can involve briefing and oral arguments.

Cooper told the publication his team would make the official filing later this afternoon, before today’s deadline for rehearing.

As we wrote here on P8TT yesterday, the proponents’ decision to seek en banc review at the 9th Circuit means the stay on Judge Walker’s decision is extended indefinitely until the appeals court decides whether or not to review the panel decision.

When the 9th Circuit issued its ruling earlier this month, Chris Stoll of the National Center for Lesbian Rights shared with us what the process of rehearing might involve:

It usually takes months for the en banc reconsideration to be completed. If a party asks for en banc review, the request is sent to all of the 20-something active judges on the court. Memos are often exchanged between the judges before a vote takes place on whether to take the case en banc. If they take it, names are drawn for the panel and a whole new series of briefs are usually filed, which takes a few more months. Then they hold oral argument and issue a decision. It is really almost like starting the whole appeal all over again.

The proponents’ decision today means the road to a final decision on Prop 8 may have gotten a bit longer.  Nonetheless, the plaintiffs’ attorneys have made it clear that they will seek to have the stay lifted, now that Prop 8 has been struck down by two separate courts.  In the 9th Circuit’s own guidelines, the court says that an en banc rehearing should only be heard if 1) there is a need for “uniformity” in the court’s decision, 2) the matter is a “question of exceptional importance” or 3) the ruling “directly conflicts with an existing opinion by another court of appeals or the Supreme Court.”  The proponents are likely to argue that the Prop 8 case is a matter of “exceptional importance,” but they may face an uphill battle convincing a majority of the 9th Circuit that the appeals panel’s decision needs to be reconsidered, especially given how narrow the ruling was.

In any case, P8TT will, as always, keep you up to date as we move forward to the next step.  Our side has already won twice in court, and the other side’s weak arguments show little promise of becoming stronger with time.

UPDATE: Thanks to Kathleen in Quick Hits, we now have the various documents that were filed with the court today.  There were three: Imperial County Clerk Chuck Storey’s request to intervene in the case, the proponents request to file a rehearing position longer than the court usually allows, and the actual petition for an en banc rehearing, which can also be read below.

141 Comments

  • 1. lesbians love boies  |  February 21, 2012 at 10:18 am

    This means soon we will see our side requesting a lift on the stay!

  • 2. Sagesse  |  February 21, 2012 at 10:20 am

    @

  • 3. Sheryl_Carver  |  February 21, 2012 at 10:21 am

    And the bigots keep bigoting.

  • 4. Alan_Eckert  |  February 21, 2012 at 10:26 am

    I'm looking forward to reading more amicus briefs!

  • 5. AnonyGrl  |  February 21, 2012 at 10:28 am

    Dear Mr. Cooper,

    Oh for heaven's sake! Give it up already!

  • 6. Kathleen  |  February 21, 2012 at 10:28 am

    Do we have any reason to believe that the filing will be made "later this afternoon"? I pretty sure Proponents have until midnight PT to file.

  • 7. vince quackenbush  |  February 21, 2012 at 10:29 am

    How many "bites of the apple" do they get. This is dilatory!

  • 8. Ray  |  February 21, 2012 at 10:30 am

    This is just a delay tactic. They know the sooner they get this to the Supreme Court, the sooner they will lose once and for all. If they really thought they would get a huge victory at SCOTUS, they would trying to get this over to have their victory behind them in other DOMA trials. This way, they can draw out the process and keep gays and lesbians from marrying for another couple of years.

  • 9. chiefscribe  |  February 21, 2012 at 10:31 am

    So what are the odds the Ninth Circuit will vote to allow en banc rehearing, and how long will it take for them to vote? I've seen lots of estimates on how long the rehearing would take if granted, but none on how quickly the Court usually decides whether to rehear or not.

  • 10. lesbians love boies  |  February 21, 2012 at 10:40 am

    Yup – the sooner it's over the money dwindles in the H8ers pockets.

  • 11. Kathleen  |  February 21, 2012 at 10:40 am

    There is some discussion of a timeline of the inner workings of the Court here: http://www.ca9.uscourts.gov/datastore/uploads/rul

    To understand what some of what they're talking about, know that a typical petition for rehearing simultaneously asks for two rehearings: (1) a rehearing by the 3-judge panel and (2) a rehearing en banc. So keep that in mind when you read the rules.

    For example, this sentence:
    "If the panel grants rehearing, it so advises the other members of the Court, and the petition for rehearing en banc is deemed rejected without prejudice to its renewal after the panel completes action on the rehearing."
    is saying that if the 3-judge panel agrees to rehear to appeal, the petition for rehearing en banc is denied, but the losing party can petition for en banc review again after the 3-judge panel rehears the appeal.

  • 12. RAJ  |  February 21, 2012 at 10:40 am

    Disappointing but expected. What are the chances of the stay being lifted once our side makes the request? Not great, I'm guessing.

  • 13. lesbians love boies  |  February 21, 2012 at 10:42 am

    OT The Maryland Senate Judiciary committee has just voted on and passed a same-sex marriage equality bill identical to the one the House passed last week.
    http://thenewcivilrightsmovement.com/breaking-mar

  • 14. Leo  |  February 21, 2012 at 10:57 am

    The proponents are likely to argue that the Prop 8 case is a matter of “exceptional importance,”

    I'll be surprised if they don't also argue that it "directly conflicts" with Baker v. Nelson, as they always do.

  • 15. Rick  |  February 21, 2012 at 10:57 am

    Thanks for some good news today!

  • 16. Plaintiffs Jeff Zarrillo &hellip  |  February 21, 2012 at 11:02 am

    […] decision that Prop 8 is unconstitutional. Chris Stoll of the National Center for Lesbian Rights reports on Prop 8 Trial Tracker about what the filing (expected later today) means. This story is about AFER co-plaintiffs Jeff […]

  • 17. Ray in Sacramento  |  February 21, 2012 at 11:03 am

    I wonder if they are trying to delay going to SCOTUS until after the fall elections. That way if, heaven forbid, a Republican gets in the White House, there would be conservative appointments to SCOTUS which would increase their chances of winning.

  • 18. James Sweet  |  February 21, 2012 at 11:06 am

    This is what I expected. However, as frustrating as the delay is, this is a good sign: The asshats have been planning all along to hit the Supreme Court ASAP, until today. Why the change of course? They know damn well their odds at SCOTUS are poor if they go forward with the Reinhardt opinion. This, exactly as I predicted, is a long shot attempt to get a broader ruling to take to the Supremes. The secondary purpose is to delay the (now nigh inevitable) reintroduction of marriage equality to California as long as possible.

  • 19. James Sweet  |  February 21, 2012 at 11:10 am

    Very poor, I would say. I don't agree with the legal reasoning for maintaining the stay, but in practice, controversial stuff like this, judges like to just leave the stay in place until the ENTIRE process has played out.

    I know it's easy for me to say, being a married straight guy… But I'm afraid there's still a loooong wait ahead :/

  • 20. chris hogan  |  February 21, 2012 at 11:13 am

    How did I KNOW they would do this today. These are the kind of games that I hope the larger 9th and SCOTUS see through. If they REALLY thought they had a good case, why didn't they file earlier? I feel like the star quarterback at my high school who just "happened" to see the playbook for the other school's football team and it reads something like this:

    1. Use whatever bullshit we think will sway spectators
    2. Don't run down to the field goal until 5 seconds before the clock runs out, so that we lose later, rather than sooner.
    3. When the game is over, complain to the referees that the grass was too long, too wet, laces weren't out etc.

    What a joke.

  • 21. James Sweet  |  February 21, 2012 at 11:13 am

    I'd say the odds of an en banc are small… But on the timeliness, I couldn't say. 2014 for a return to marriage equality in California might not be unrealistic, I fear :- The wheels of justice are mighty slow sometimes…

  • 22. Carpool Cookie  |  February 21, 2012 at 11:14 am

    But he still has billable hours to milk!

  • 23. Carpool Cookie  |  February 21, 2012 at 11:17 am

    Yeah. Law's hard to understand. But we have to keep in mind this step of the court system wasn't invented to frustrate anyone in particular. Presumably, it evolved out of some reasoning Re: making fair decisions for everyone. If we look, there are probably en blanc rulings that were helpful.

  • 24. Kate  |  February 21, 2012 at 11:19 am

    So they can first have the 3-judge panel hear it again, and after that they can STILL have an en banc? When does this ever end????????

  • 25. Carpool Cookie  |  February 21, 2012 at 11:19 am

    If the en blanc hearing is denied by the 9th Circuit, can that decision be appealed to the Supremes, who can order it go back for an en blanc?

  • 26. adham  |  February 21, 2012 at 11:25 am

    It's not over until God holds a review…

  • 27. Cat  |  February 21, 2012 at 11:26 am

    The decision was 2-1, so not unanimous. I assume that (unfortunately) increases the chance of an 'en banc' hearing, as it is one of the criteria.

  • 28. Leo  |  February 21, 2012 at 11:26 am

    They can certainly appeal the panel's ruling to the Supremes. Do you mean if they can ask for a writ of mandamus from SCOTUS to force the 9th Circuit to rehear the case en banc? I don't think there's such a thing, but IANAL.

  • 29. Jacob  |  February 21, 2012 at 11:27 am

    It's all just academic to them anyway. Is there a single LGBT person on the 9th Circuit?

  • 30. Gregory in SLC  |  February 21, 2012 at 11:29 am

    WOOT!!!!

  • 31. AnonyGrl  |  February 21, 2012 at 11:32 am

    Well, no. Not really. The whole point of the civil case is that this is not a religious institution, it is a civil one. So God doesn't get a say in the US court system.

  • 32. David  |  February 21, 2012 at 11:45 am

    Marriage delayed is marriage denied.

  • 33. Jamie  |  February 21, 2012 at 11:47 am

    In February, 2014 it will have been a decade since the City of San Francisco began issuing marriage licenses to gay couples. Loving v. Virginia took 3 years from start to finish.

  • 34. Taylor S.  |  February 21, 2012 at 11:49 am

    At this point they're just delaying, hoping that CA will repeal Prop8 through referendum and all the horrible case precedent they've garnered will be tossed out as irrelevant (like all the DADT cases were).

  • 35. Bob  |  February 21, 2012 at 11:51 am

    God's review takes place when you die!!!!! during the time you are in your body in this life,,, God requires you to give way to secular laws,,,, which work accoridng to AnnonyGrl's post ,,, the point being the secular world is ahead of church doctirine this time in creating equality and justice for ALL!!!!!!!!!

  • 36. Bob  |  February 21, 2012 at 11:53 am

    woot woot whack-a-mole,,,, way to go Maryland,,,,,,, that's the land where eveyone can marry!!!!!

  • 37. Bob  |  February 21, 2012 at 12:05 pm

    yes the court system takes it's time and has it's own working clock,, and as many predict this could take years to play out,,, that part is in NOM's favour,,, however it will eventually play out,, and in the end it will be in the favour of EQUALITY!!!!!

    sometimes just to cheer myself,, I like to read updates from get=equal,,, they are conitnually doing interesting things,,, like the valentines day sit in in county clerks offices,, asksing for marriage licences…

  • 38. David  |  February 21, 2012 at 12:08 pm

    I don't think the en banc rehearing will be granted. Most of these applications are denied. Assuming that it is denied, this latest move won't add anything to the timeline. It will still be appealed to the Supreme Court this year and that Supreme Court will decide whether to take it when it resumes work in September. Had there been no motion for en banc review, it still would have wound up at the Supreme Court with September being the month in which that court decides whether to take it.

    In other words, assuming that the en banc motion is denied, the possible end dates for this case are September 2012 and (if the Supreme Court takes the case), June 2013.

  • 39. Ed in Lafayette  |  February 21, 2012 at 12:18 pm

    Upon reading the link that NOM supplied to the NYT, it is an article published yesterday, and had nothing to do with the deadline or the en banc question. Yep, another spin job from NOM for sure….and a bad one at that :)

  • 40. Rick  |  February 21, 2012 at 12:21 pm

    Welcome to Marryland!

  • 41. Guy in CA  |  February 21, 2012 at 12:22 pm

    It could have been unanimous if Judge Randy Smith had recused himself.
    Using Yes on 8's rationale that Judge Walker's decision was biased because he was gay the same could be said about Judge Smith's decision as a Mormon.

  • 42. Gregory in SLC  |  February 21, 2012 at 12:24 pm

    Borrowing from Fiona ……

    I distrust those people who know so well what God wants them to do, because I notice it always coincides with their own desires. — Susan B. Anthony

  • 43. alleninsb  |  February 21, 2012 at 12:31 pm

    This is a great post but it doesn't consider one thing. The decision on whether or not to grant the en banc hearing, as stated in the article above, could take months. Could it take them past September to decide whether or not to grant the hearing?

  • 44. Guest  |  February 21, 2012 at 12:37 pm

    Jacob wrote: "The proponents’ decision today means the road to a final decision on Prop 8 just got much longer."

    I think you're confusing two different things. A decision by the proponents to petition for a rehearing only makes the road a few months longer, while the judges decide whether to grant or deny rehearing. The possibility of the road becoming "much longer", i.e., by a year or more, is something that would only happen if the court grants a rehearing, which would be the judges' decision, not the "proponents' decision".

    Also: "Nonetheless, the plaintiffs’ attorneys have made it clear that they will seek to have the stay lifted, now that Prop 8 has been struck down by two separate courts."

    When did they make that clear? I recall comments from the attorneys (although I can't find a reference to them now) to the effect that the plaintiffs would move again to lift the stay if a rehearing is granted. However, I don't expect that they would try such a motion before the rehearing petition has been decided.

    The court has already twice ruled against the plaintiffs on the stay issue (in August 2010 and March 2011), and just a couple weeks ago they reiterated that they were not modifying the stay. It doesn't make sense to ask the court to reconsider the question yet again until something significant has happened since the last time they looked at it. I would consider a decision to grant a rehearing a significant development, but not the mere petitioning for a rehearing.

  • 45. Gregory in SLC  |  February 21, 2012 at 12:47 pm

    India Court case dragging on as well. This battle is being fought globally!
    http://globalequality.wordpress.com/2012/02/17/lg

  • 46. toddallenpeterson  |  February 21, 2012 at 12:48 pm

    Their strategy is to run their clients out of money before they give up the case. They will continue to get shot down and they will continue filing things and appealing things until there is no more money or until the Supreme Court makes a ruling or denies them a hearing.

  • 47. W. Kevin Vicklund  |  February 21, 2012 at 12:51 pm

    Don't be too sure of that, David. I could make a principled argument that the narrow panel decision was inapposite to the situation in Romer. If SCOTUS accepted that argument, they could overturn the panel's narrow decision and remand it to the panel to make a decision on a broader basis. In which case, you've got another panel decision, and another round of appeals to 9th Court en banc and SCOTUS. I see this as a very real possibility.

  • 48. Jacob Combs  |  February 21, 2012 at 12:53 pm

    Point taken on the first note–I'll revise that to make it clearer. As for the second, the AFER attorneys mentioned during the press call on the day of the panel decision that they would argue for the stay to be lifted if the proponents sought rehearing. I'm not sure they have a very good chance of winning on the stay, but they did state pretty clearly that they would attempt to get it lifted.

  • 49. icapricorn  |  February 21, 2012 at 1:02 pm

    We can thank the Mormon church and the Catholic church for keeping this bitter losing battle alive. All resistance to gay civil rights is funded by religions, and only by religions.

  • 50. Kathleen  |  February 21, 2012 at 1:09 pm

    It's not unusual at all for a party to wait until the deadline to ask for a rehearing.

  • 51. Andrew_SEA  |  February 21, 2012 at 1:09 pm

    “Good God man!”

    /giggle

  • 52. Leo  |  February 21, 2012 at 1:19 pm

    All resistance to gay civil rights is funded by religions, and only by religions.

    If that were true, communist countries would have been at the forefront of gay rights.

  • 53. Carpool Cookie  |  February 21, 2012 at 1:40 pm

    Yes. They want to get every duck they can get their hands on in a row. And a good lawyer will usually do this. It's like when you're taking an SAT test. You can turn your answers in early….but it's recommended you sit with your final decisions as long as possible, to see if anything else occurs to you. It allows for more options, and thoroughness.

  • 54. theo  |  February 21, 2012 at 1:41 pm

    and getting it…(it;s not 2004 anymore…or even 2008!)

  • 55. Carpool Cookie  |  February 21, 2012 at 1:42 pm

    "It's not over until God holds a review… "

    Or the fat lady sings.

    Or…maybe they're one and the same.

  • 56. theo  |  February 21, 2012 at 1:45 pm

    so BILL THOSE HOURS UNTIL NoM is broke!!! Sounds like a perfect plan in a year where even NC's "constitutional" bans is no sure thing anymore…And santorum oozing his nonsense at the same time?

    STAY ON MARRIAGES? *WHAT* STAY ON MARRIAGES….

    (I can laugh at their writhings, but only because my marriage rights are being supported, even under Flop 8's irrationality, as 1 of 2 of 18,000

  • 57. Theo  |  February 21, 2012 at 1:49 pm

    KA CHING…IF YOU'RE A NoM LAWYER, huh…

  • 58. Carpool Cookie  |  February 21, 2012 at 1:52 pm

    Not really. Just because a community don't have a religion, it doesn't mean they don't have specific likes and dislikes and agendas. You could say that believing in some specific religious text might influence someone's thinking…but you can't prove that never having seen the text, or believing in it, would have any definite outcome either way.

  • 59. James Sweet  |  February 21, 2012 at 1:57 pm

    How do you know that? Give me a solid reason why your interpretation of what God wants is any more valid than Fred Phelps'? There is a fundamental epistemological problem with trying to rely on faith? Just sayin'…

  • 60. fiona64  |  February 21, 2012 at 1:58 pm

    And it was abundantly clear to me that he wrote his dissent from his position as "Brother" Smith, not "Judge" Smith.

  • 61. Leo  |  February 21, 2012 at 2:01 pm

    Not sure what you're trying to say: yes, a community without a religion still has likes and dislikes and agendas, and that may include resistance to gay rights. Which was my point – it's NOT "only by religions."

  • 62. Jamie  |  February 21, 2012 at 2:04 pm

    More likely that appealing to Supreme Court would be rejected, gays would start getting married (again) in CA, sky wouldn't fall. This would lead to voters in Maine, Washington, Maryland, being more likely to support marriage equality at the ballot box.

    I doubt that even they are delusional enough to think that mittens or surge will be able to beat Obama.

  • 63. Steve  |  February 21, 2012 at 2:05 pm

    Interesting fact: East Germany de facto decriminalized sodomy in the late 50s and officially removed laws in against consensual gay sex among adults in 1968. It left in place a law against gay sex with minors, but even that was removed in the late 80s. At that point gay and straight people were treated equally as far as sex was concerned.

    Compare that to the US or many other western countries

  • 64. MJFargo  |  February 21, 2012 at 2:10 pm

    And. Both sides want every avenue exhausted (is it exhausting yet?), otherwise, questions remain. In truth, I can't imagine the folks over at Cooper & Kirk are sitting around saying, "We've got such a wonderful case, let's hurry it up!" All they really can do is delay and procrastinate. It's a tool available to all sides and from where I sit, it's all they've got. While one judge at the 9th Circuit agreed with them, it wasn't a very compelling argument that would stand up well in front of SCOTUS.

  • 65. MJFargo  |  February 21, 2012 at 2:19 pm

    The key word, for me, in icapricon's post was "funded." And the Mormon church was fined for it's involvement in this case.

  • 66. Menergy  |  February 21, 2012 at 2:26 pm

    yeah, Good God, man! (I know it was a witness that earned that, but it applies here, too!)

  • 67. MightyAcorn  |  February 21, 2012 at 2:38 pm

    So I'm a little unclear on something, sorry if I'm just not grokking the article and Chris Stoll's description fully: whether the polling of the Ninth Circuit justices on whether to grant en banc hearings takes months, or it only takes months if they grant the rehearing. Does it take months for them to decide to rehear it en banc, due to all those memos etc.? Maybe that decision happens a little more quickly? Anyone know how long it took them to decide the last time they granted an en banc rehearing?

    And….since they're requesting this rehearing themselves, does it mean they weren't able to talk one of the superconservative Ninth Circuit justices into requesting it for them? Wasn't there some conjecture that they might try to do that?

    Happy Mardi Gras, btw….at least in MD they're laissezing les bon equalite rouler!

  • 68. allen  |  February 21, 2012 at 2:43 pm

    Counting the instigating moment, like Newsom issuing marriage licences in San Fransisco; the arrest of Mildred and Richard took place 9 years before their resolution. But I think you're right on your point, considering how much each has spent in Federal court, it seems to me Prop 8 will probably surpass. I just hope they lift the stay, but not holding my breath :(

    July 11, 1958 – Commonwealth's Attorney Bernard Mahon obtains warrants for the arrest of Richard and Mildred Loving.

    June 12, 1967 – In a unanimous ruling by the U.S. Supreme Court, Virginia's antimiscegenation statutes are struck down and Loving v. Virginia establishes the legal basis for a cultural redefinition of marriage.
    http://encyclopediavirginia.org/Loving_v_Virginia

  • 69. Bob  |  February 21, 2012 at 2:45 pm

    East Germany was not without religion,,, religion assisted Hitlers agenda for a long time

  • 70. Guest  |  February 21, 2012 at 2:55 pm

    Thanks for the response, for updating the article, and for citing the February 7 press conference. I've now watched the video, and I don't think Olson made it clear that the plaintiffs would move to lift the stay before the court even decides whether to rehear the case.

    My impression of the plaintiffs' intentions remains the same: (1) if the court grants a rehearing, thereby extending the current stay for another substantial round of litigation, then the plaintiffs will move again to lift that stay; and (2) if rehearing is denied (or not even requested), thereby causing the current stay to expire, and the proponents then seek a new stay, then the plaintiffs will oppose issuing any new stay.

    I don't think he was saying he would file a motion to lift the current stay during the relatively brief period while the rehearing petition is being considered, which would only risk wearing out the welcome for filing such a motion when and if a rehearing is granted (a welcome that is already worn a bit thin by the first failed motion to lift the current stay).

    Here's my own transcript of Olson's comments at the February 7, 2012, 10:55 AM PST press conference (&lt ;http://www.ustream.tv/recorded/20288259>):

    [at 26:07] MR. OLSON: Oh, the stay. What the — what — in the last words of the opinion, on page 80 I think you'll find it, the court stayed the effect of its decision until the mandate is final, which will be fourteen days for the other side, if they wish, to ask for a rehearing by the entire Ninth Circuit, and then seven days after that, if that fourteen days goes by, would be the end, so we're talking about February 28th. Now what I suspect, but don't know, is that, uh, our opponents, the proponents of Proposition 8, will seek a stay pending some further analysis by the United States Supreme Court, or some application to the court, and then we'll app– we'll — we'll urge the Ninth Circuit to lift the stay.

    Here we have a district court that's decided that this Proposition 8 violates consitutional rights of citizens throughout California. The Ninth Circuit has affirmed that. We have said right from the beginning that discrimination and violation of the fourteenth amendment to the constitution can't just keep going while the courts are liti– litigating this issue, especially in light of these decisions.

    [At 39:41] QUESTION: Going back to the stay, um, so you're saying that you are going to urge the Ninth Circuit to lift the stay at what point?

    39:51 MR. OLSON: We're — We're — We will be urging, when– when it's presented to the Ninth Circuit, as we presume it will be by our opponents, they will want to keep the stay in effect while they litigate further either in the Ninth Circuit or in the United States Supreme Court. We will oppose that stay. We will say the time has come to stop this discrimination. We have a district court decision, we have an appellate court decision. The time has ended. These people are being hurt every single day.

  • 71. Leo  |  February 21, 2012 at 2:57 pm

    Good for East Germany. Meanwhile, homosexuality in the USSR was still criminalized in 1991 when it collapsed, and the level of resistance to LGBT rights in post-Soviet Russia is significantly higher than in the US even though the level of religiosity is significantly lower. Clearly there are other factors at play besides religion that can bias the populace against gay rights.

  • 72. mgp  |  February 21, 2012 at 2:57 pm

    I agree with James here. The ruling from the panel was far too narrow to be even a question for the SCOTUS to consider. No larger right to same sex marriage was established and the grounds on which the ruling were made are narrow and solid.

    Thus, proponents have to attempt to get something they can bring to SCOTUS to get the broader question of gay marriage to be the issue.

  • 73. Ann S.  |  February 21, 2012 at 2:59 pm

    §

  • 74. Rafael  |  February 21, 2012 at 3:03 pm

    So…from what I read above just making the decision of whether to grant the en banc hearing or not takes months. So if they say yes to the hearing and the Prop 8 supporters lose in the end, it could be years before gay marriages in California restart right?. But what happens if they say no the hearing? I read above that some people are dubious about the chances of having the stay on marriages lifted. So if they say no the hearing, that does not mean gay people can marry again? Do we have to wait until the Prop 8 supporters take it to the Supreme Court?? It looks like we lose in any of those scenarios…or maybe not lose but we end up waiting too long.

  • 75. Steve  |  February 21, 2012 at 3:11 pm

    What Hitler did has nothing whatsoever to do with what the Communists did after the war. Different country, different regime.

    In East Germany, the state promoted a secular, atheistic world view. And they didn't replace religion with a quasi-religious personality cult like Stalinism, Maoism or Juche in North Korea. You can still see that effect today. Over 70% of the people in the east don't belong to a church. As opposed to around 30% in the west.

  • 76. SoCal_Dave  |  February 21, 2012 at 3:14 pm

    Let's say there is an en banc hearing and the full [-ish] 9th circuit agrees with the panel. Would this tend to make SCOTUS less likely to take the case? And if they take it, would it make them less likely to disagree, since it has been decided the same way three times?
    I realize nobody has a crystal ball, but I bet there are some opinions/educated guesses on this.

  • 77. lesbians love boies  |  February 21, 2012 at 3:19 pm

    Why is Chuck Storey adding ANOTHER Motion to intervene?

  • 78. Larry  |  February 21, 2012 at 3:44 pm

    From what I could see on the 9th Circuit website. Any 9th circuit judge has 3 weeks to ask the original panel what they think about an en banc rehearing. Once the panel makes their recommendations, there is a further 2 weeks where any 9th Circuit judge could call for the vote itself. Based on his previous decisions, I think there's a good chance ultra-conservative Judge Diarmuid O'Scannlain would call for the vote. As far as I can tell, there's no time limit for the panel judges making their recommendations or for the vote itself. Also, the plaintiffs will have a chance to voice their opinion on the matter.

    Interesting side note, it's possible that none of the original 3 judges would be on an en banc panel. The judges are chosen randomly so each judge only has a ~50% chance of being chosen.

  • 79. grod  |  February 21, 2012 at 3:51 pm

    Can en banc review whether Cooper and Company have standing, or is only a reconsideration on merts – if it were to go forward? G

  • 80. fiona64  |  February 21, 2012 at 3:55 pm

    Because he's going to slam his head into the wall until it explodes?

    BTW, the anti-equality folks going through and marking all of the pro-equality posts with a thumbs-down just amuses me no end. It must stink to high heaven to know that soon you'll be relegated to the same place in history as the KKK …

  • 81. steven  |  February 21, 2012 at 3:55 pm

    If the 9th Circuit denied the rehearing on En Banc the Protectmarriage.com will to file an appeal to SCOTUS, and they must ask for a stay with SCOTUS. SCOTUS can deny or grant a stay..

  • 82. Cat  |  February 21, 2012 at 3:56 pm

    He's like Don Quixote fighting the windmills. Reality has little to do with it.

  • 83. steven  |  February 21, 2012 at 3:56 pm

    oops "to"

  • 84. Bryce from DC and KS  |  February 21, 2012 at 3:59 pm

    So, will this application for en banc hearing be a particularly interesting document? Will they be laying out a case for it or anything like that? Or will it just be a couple of pages?

  • 85. lesbians love boies  |  February 21, 2012 at 4:20 pm

    I am reading their petition for hearing…it's gone beyond (FAR FAR beyond) their trial records. They are now saying being gay is okay…but gays should have another name for their marriage with all the same rights and benefits?

    A change of tune from the original trial…

    They are certainly skating on thin ice and I don't think for one minute they will get an en banc hearing based upon what I am reading.

  • 86. Josh  |  February 21, 2012 at 4:34 pm

    Doubt it, but I hope you're right.

  • 87. Bryce from DC and KS  |  February 21, 2012 at 4:38 pm

    Where!? I wanna read!

  • 88. lesbians love boies  |  February 21, 2012 at 4:40 pm

    http://www.scribd.com/doc/82302698/10-16696-402

  • 89. Matt  |  February 21, 2012 at 4:43 pm

    I agree to this possibility Ray. It's my opinion that the opposition thinks they will lose as the current ruling stands. The pundits have been awfully one sided, and not on their side, with Justice Kennedy's position on gay rights. Of course we do not know their motives unless they tell us. It is strange that they have made such an about face. All the emails from the opposition up until now have stated their desire to get this to SCOTUS as quickly as possible. But I do not believe they think they will win anymore. They believe now, as we do, that victory over this matter is inevitable in favor of liberty and equality. In fact, I know it is.

  • 90. R J R  |  February 21, 2012 at 4:46 pm

    @Bryce – The proponents have filed an Unopposed Motion to file an oversized petition. That could mean they're rehashing the same arguments prefaced with a round of comments on the 3-judge (2-judge majority) decision. The case filings seem to grow very much like a Workman's Comp medical file – each round repeating all the arguments from the prior round, and adding a twist.

    @All – The narrowly written 9th Circuit judgement does seem an unlikely candidate for SCOTUS – I would think they would want something that painted with a broader brush. I'm a lay-person, but it seems to me that a judgement which focuses solely on a matter specific to a set of unique historical circumstances in California would be lacking the Federal Question that SCOTUS seems to be looking for when they accept a case. I'm not suggesting that the matter isn't of tremendous importance, only that affirming the judgement would only affect California, reversing the judgement would only affect California, and remanding it back to the 9th Circuit would seem to do very little at all. Moreover, the judgement specifically pulls "same sex marriage" off the table. This is not like ROMER or LAWRENCE which had immediate and broad implications for the entire country.

    The heart of the judgement, to me, begins at page 32 of the decision, when the question of adjudicative facts vs. legislative facts, and the statement that "…the only fact found by the district court that matters to our analysis is that '[d]domestic partnerships lack the social meaning associated with marriage' — that the difference between the designation of 'marriage' and the designation of 'domestic partnership' is meaningful." [quotes in original]

    The next major point is on pages 33-34, in which the judgement addresses the third argument of plaintiffs and proponents with respect to constitutionality. This point deals with the withdrawal of a right from a group of people without sufficient justification. It makes the argument that if the proponents were truly concerned about any of the more recently raised issues of child-rearing, education, etc., they would have crafted a proposition which abolished same-sex foster parents, same-sex adoptions, and other issues related to the rearing of children. The court notes that they did not, and that their sole aim was to make the term 'marriage' unavailable to same-sex couples. It concludes that the only possible explanation was animus, which is insufficient for the denial of a right.

    As for the authors of the judgement, I grant that one of the 9th Circuit judges was a conspicuous liberal, but the other majority member has a very balanced record. Randy Smith was presumed (by me, at least) as a lost cause from the outset. (I did, however, expect Smith to come up with something more compelling than his somewhat watery minority opinion.)

    If I've been too windy, I apologize – but it's so easy to over-simplify and think of this as a same-sex marriage case, when in fact it is a case about deprivation of a right under very specific circumstances. That the right in question is same sex marriage is, ultimately, nearly irrelevant. The proponents have to make their case, and the subject matter will involve same-sex marriage, but had same-sex marriage not been allowed in the first place – had the California court granted a stay pending the outcome of the Prop 8 vote, I doubt we'd even be having this discussion.

  • 91. Jamie  |  February 21, 2012 at 5:32 pm

    Oh god, we are back to accidental pregnancies of heterosexuals is the reason that we have to deprive gay and lesbian couples of their right to call their relationships marriages. I really have no idea how these things are rational to anyone.

  • 92. John  |  February 21, 2012 at 5:36 pm

    @R J R according to Section 8(d) of Article II of the California Constitution, California initiatives must conform to the single-subject rule. The relevant constitutional passage says, "An initiative measure embracing more than one subject may not be submitted to the electors or have any effect."

    Changing more than just the laws of marriage in the state wouldn't be valid.

  • 93. John  |  February 21, 2012 at 5:48 pm

    @R J R according to Section 8(d) of Article II of the California Constitution, California initiatives must conform to the single-subject rule. The relevant constitutional passage says, "An initiative measure embracing more than one subject may not be submitted to the electors or have any effect."

  • 94. Justin  |  February 21, 2012 at 6:14 pm

    I am outraged by the interminable delay in this case. Once we are able to enjoy our right to marriage, that will obviously benefit us in terms of the protections and benefits we deserve. More largely speaking, it will also effect major cultural changes among younger gay men by funneling more of them into long-term, committed relationships. You'll start to see more guys interested in dating and romance than hookups and circuit parties.

    I remember telling my mother the day that I came out in 1999 that marriage would be a reality in 5 years. That turned out to be the false hope of an 18 year old boy. Now, at 31, I'm single, and, yes, that's surely due to many factors. But I can't help thinking that I've already lost something rather vital by all this delay. That maybe if we'd had marriage earlier, I'd be settled down by now, and could've shared some of the exciting years of my twenties with my husband, rather than still trying to find him.

  • 95. David  |  February 21, 2012 at 8:20 pm

    No, it won't take that long for them to decide the question of whether or not to hear the case en banc. Our side will have a chance to file a brief in opposition and then the judges will confer and vote. You are looking a month for our side's brief, possibly another month if the Court wants to allow the proponents a reply brief. The decision should follow not too long after. Assuming it is denied, that ruling probably would come down in May or June. The petition for certiorari, and opposition thereto, would take place over the spring and summer when SCOTUS is on break. Then they'll come back in September and decide whether to take the case.

  • 96. Charlie Galvin  |  February 21, 2012 at 8:22 pm

    The en banc review could look at anything, but most likely it would focus on whatever aspects the proponents' petiton requested they look at. I can't quite see the proponents having asked for a review of the standing issue,which was unanimously decided in their favor.

  • 97. David  |  February 21, 2012 at 8:29 pm

    That doesn't strike me as a likely outcome. If SCOTUS rejects the narrow ruling, it is highly unlikely that they will remand for further proceedings on the broader question. I am not even sure that you could logically reject the panel's ruling while allowing the possibility that same-sex marriage is a fundamental right as the latter issue would impact the level of scrutiny applied in resolving the former. (By contrast, SCOTUS could affirm the panel's decision without resolving the broader constitutional question.)

  • 98. Charlie Galvin  |  February 21, 2012 at 8:31 pm

    I do think there is some chance en banc rehearing will be granted. If so, I'd wager it will be on the “important issue” ground.

  • 99. Charlie Galvin  |  February 21, 2012 at 8:33 pm

    I can see where you could make such an argument, but just how finely do you want to split this hair?

  • 100. NancyH  |  February 21, 2012 at 8:59 pm

    Yup, totally saw this coming. Lets see the pro H8 side file next time if the stay is lifted.

  • 101. Drpatrick1  |  February 21, 2012 at 9:20 pm

    In smith's dissent, even he dismissed Nelson. So that would be a tough line to argue

  • 102. Leo  |  February 21, 2012 at 9:36 pm

    Evidently not tough enough. They are arguing it, as well as Walker recusal, which Smith also dismissed.

  • 103. Diane  |  February 21, 2012 at 9:37 pm

    Proceeding as expected… The Yes on Prop 8 attorneys aren't going to skip any steps on the way to the U.S. Supreme Court anymore than the No on Prop 8 attorneys would.. Both banks of attorneys know it is in their best interest to look for a ruling to go their way in a lower court on the way to big showdown in the U.S. Supreme Court… We've come a long way but we still have a long way yet to go…

    I vow to keep trudging along toward marriage equality the company I trudge with is excellent…

  • 104. SeattleRobin  |  February 21, 2012 at 9:54 pm

    Agreed. I did a post on my blog on the 9th saying the same thing, that they would apply for this as a delaying tactic. Delaying the inevitable is the only thing they have going for them anymore.

  • 105. Lynn E  |  February 21, 2012 at 10:21 pm

    I found mine at 30. Don't give up! We are celebrating 21 years together in April. And all of this in Utah, under the watchful eyes of the Mormons.__Hopefully one day, marriage will come to this blister in the wilderness, but until then I'm actually content watching the tide turn.

  • 106. MightyAcorn  |  February 21, 2012 at 10:29 pm

    Thanks Larry! That makes it a little clearer. It seems odd to me that original panel gets asked if there should be a rehearing…I mean, wouldn't you think they'd say "NO, I just heard the damn thing and I made a competent decision, thank you very much!" Anyway, I'm tending to agree with those who think this is pretty much a Hail Mary pass (as it were) so we'll hope for the best….

  • 107. Lynn E  |  February 21, 2012 at 10:36 pm

    I don't remember any previous mention of the Crawford v. Board of Education case. Maybe I was just bleary-eyed when reading the previous decisions. Of course, Crawford was 1982, and the thinking of the courts may have evolved since then, especially in the aftermath of Romer and Lawrence. Remember that under Bowers, we didn't even have a right to privacy in our own homes.
    But this may make it a little more likely that an en banc review may be granted.

  • 108. MightyAcorn  |  February 21, 2012 at 10:40 pm

    You know, if you're going to be a cowboy, at least be a *smart* cowboy. If you've got something to prove, hadn't you better make sure it's provable first? Flailing at folly might impress the slack-jawed, but the main impression you'll make will be the wrong kind….just a dent and a few crumbles where your head hit the bricks, as fiona64 points out.

    Anyway….good luck with that, Chuck.

  • 109. Kathleen  |  February 21, 2012 at 11:30 pm

    Chuck Storey joins in the Proponents' petition for rehearing en banc:
    http://www.scribd.com/doc/82401243/405

    This is filed only in the two cases covered by Proponents petition – the main appeal on the merits and the appeal regarding the motion to vacate. It's unclear to me whether he still intends to file a petition for rehearing on the denial of his motion to intervene or whether that's been covered by re-upping his request in the earlier motion. I'll try to get clarification tomorrow.

  • 110. R J R  |  February 21, 2012 at 11:45 pm

    John, I think you're interpreting the single subject rule to tightly. For example, an initiative which changed the legal drinking age AND outlawed the use of plastic garbage bags would fail the single subject test. But if an initiative were framed, for example, as 'An Act for the Protection of California Children" which proceeded to add, amend, or delete various laws pertaining to foster parenting by same sex couples, adoption by same sex couples, marriage by same sex couples, education regarding same sex relationships, etc – all touching upon the raising of children and the formation of a home – I believe the single subject rule would not be grounds for objection.

    Could someone with legal training enlighten us on this point?

  • 111. Had Enough  |  February 22, 2012 at 12:29 am

    I've had it with this "responsible procreation" crap. That petition for rehearing is full of it. They keep saying that gays can't get married because only heteros can have unintentional babies. Well, unless you're talking about rape, there is no such thing as an unintentional baby. Any time a couple decides to have intercourse and conception occurs, guess what? They intentionally took the actions that conceived the child! I really resent this utterly demeaning idea that I can't get married because straight people like to have casual, bareback sex, or because sometimes their rubbers break.

  • 112. Chris in Lathrop  |  February 22, 2012 at 2:29 am

    Yep! Accidental pregnancy (purely not a lesbian or gay problem) and the "sanctity" of celebrity "Just For Fun™" marriages are perfectly legitimate reasons to enforce right-wing bigotry and deny equal rights to everybody, right?

  • 113. Str8Grandmother  |  February 22, 2012 at 3:17 am

    Well what could happen IF they get an en Banc re-hearing is that we could win again with a sweeping decision like Walker decided. They could reject Reinhardt/Hawkins/Smith's narrow decision based on Romer and rule that across the board denying Civil Marriage to Sexual Minorities violates the 14th & 5th Amendment which would then apply to all States that currently Discriminate.

  • 114. Bill S.  |  February 22, 2012 at 5:06 am

    The Supreme Court would certainly take such a case and either affirm it, granting marriage equality across the nation, or affirm it on other grounds, saying that while the Reinhardt's opinion stretched Romer a bit too far, it was nonetheless a correct conclusion of law to say that Proposition 8 advanced no rational policy and its only purpose was to show animus towards gay people.

    I do not think that they will let Prop 8 stay. And I highly doubt the en back hearing will give them the broader ruling they're looking for anyway.

  • 115. Peterplumber  |  February 22, 2012 at 5:29 am

    I'm just not grokking the article
    I am reading that book (again) now!!! I love that book!!!

  • 116. Dr Brent Zenobia  |  February 22, 2012 at 6:23 am

    That form of argument – that we need to deny SSM because heterosexuals otherwise just can't control themselves – is one that the three judge panel already considered and rejected. Banning SSM would contribute nothing to reducing unplanned pregnancies among heterosexual couples.

  • 117. James Sweet  |  February 22, 2012 at 8:32 am

    So this is interesting: In the petition for en banc, they are STILL harping on Walker's "failure" to disclose that he was in a same-sex relationship. Granted, they don't spend a whole lot of time on this point, but I would have thought they would have dropped it by now. It's clearly not going to succeed, their lawyers must know that, and although they had to pursue that angle initially for publicity purposes, it just seems like a bit of a dead horse at this point.

    In general, the petition is a bit rough around the edges. The "best" parts (and by that I mean the most cogent legal arguments; morally, the entire thing is offensive through and through) are basically a paraphrase of Smith's dissent.

    I think it's clear that Reinhardt's opinion really caught them off guard and they are somewhat reeling trying to figure out how to deal with it.

  • 118. James Sweet  |  February 22, 2012 at 8:38 am

    Crawford would have been irrelevant before the Reinhardt opinion, and this is their first chance to address that.

    That said, I don't see any mention of Crawford in Smith's dissent, and I would have thought he would have brought it up.

  • 119. Sheryl_Carver  |  February 22, 2012 at 8:55 am

    Since they cannot use "cuz my interpretation of the Bible says it's sinful" & "it's icky" in a court of law, "procreation" is all they've got. & if you've ever looked at the comments by the brainwashed NOMbies over at NOMblog, you understand that rational thinking is not one of their strong suits. Fortunately, what plays to their base doesn't go over very well with most judges. Unfortunately, we must wait yet again for them to reiterate the irrational, dragging this on as long as possible so the attorneys get billable hours & Brian & Maggie get their paychecks. And causing untold harm for LGBT families in the process.

  • 120. Bob  |  February 22, 2012 at 9:19 am

    That would be justice in action,,, just move this whole thing right along,, and put an end to the back and forth cash cow for lawyers,,,,,, it is a dream,,,, but I have to admit to thinking that too it could turn on the merits and be a huge WIN!!!!!

  • 121. Kathleen  |  February 22, 2012 at 9:38 am

    The Fifth Amendment doesn't apply to the individual states, only the federal government. Similarly, the 14h Amendment only applies to individual states, not the federal government. However, case law over the years has assured that most (not all) of the rights guaranteed by the 5th Amendment are guaranteed under the Due Process clause of the 14th Amendment and the 14th's equal protection guarantee exists in the 5th Amendment.

    But because of this distinction between the 5th and 14th Amendments, the complaint in Perry and the decisions from both courts reference only violations of the 14th Amendment and the DOMA cases involving individual plaintiffs all allege violations of the 5th (not 14th) Amendment. Of course, the DOMA cases don't claim that anyone is denying the plaintiffs a fundamental right to marriage, only that the federal government is not treating married couples equally, thus violating the equal protection guarantee of the 5th Amendment.

    Point being, no matter how broad a possible en banc decision might be, it won't conclude that Prop 8 violates the Fifth Amendment. I realize this is a fine point, but just trying to help people who don't have knowledge of the law better understand the arguments and conclusions they encounter in these cases.

  • 122. Bob  |  February 22, 2012 at 10:16 am

    thanks Kathleen

  • 123. Sheryl_Carver  |  February 22, 2012 at 10:53 am

    Thanks for helping us lay people better understand, Kathleen. The bit of silver lining in the Prop 8 battle is learning more about our legal system, thanks to you & other professionals in our community!

  • 124. Mouse  |  February 22, 2012 at 10:55 am

    I wish it were more obvious that real and measurable harm is caused by the imposition of the stay, and that no harm would come from the stay being lifted.

  • 125. James Sweet  |  February 22, 2012 at 12:45 pm

    While icapricorn's statement was not always true, and is still not true everywhere in the world, it is true today in modern Western-style democracies. While you find rare non-religious individuals who oppose marriage equality, they are incredibly rare and are of essentially no consequence. And clearly all of the funding is coming from religions. How can you deny this? Can you name a single anti-marriage equality group that doesn't have religious dogma at its core???

  • 126. chiefscribe  |  February 22, 2012 at 1:27 pm

    Useful summary at http://blogs.kqed.org/newsfix/2012/02/21/prop-8-e

  • 127. R J R  |  February 22, 2012 at 2:30 pm

    This just in – the Chuck Storey motion to intervene (again) was dismissed as moot.

  • 128. Str8Grandmother  |  February 22, 2012 at 2:30 pm

    I understand what you are saying, however I think (I could be wrong, it would not be the first time) our attorneys ARE arguing Due Process Under the 5th Amendment. Not that they have gotten it to date, but that is what they are arguing. As in the closing arguments in District Court in front of Judge Walker by our Atty Olson. –

    MR. OLSON: No, Lawrence vs. Texas was a 6-to-3
    decision. She wrote a concurring opinion on Equal Protection grounds. But the majority of the opinion was signed by five, Justice Kennedy and four other justices decided that case on 3 the basis of due process.

    AND-
    THE COURT: Should the review here be different with
    respect to your Due Process claim and your Equal Protection claim?
    MR. OLSON: No. We submit that strict scrutiny is
    required in either case, for different reasons.
    Due process, as I've explained and the Supreme Court
    over and over again has affirmed, provides a fundamental
    constitutional right rooted in privacy, liberty, association and so forth, to engage in the institution of marriage. Not a false institution of marriage. Not a something that is not
    citizenship but it's called something else.

    It is the fundamental right of marriage which has all of the significance we learned here. Taking that away, that requires strict scrutiny. Because our fundamental rights can't be taken away unless the state has a very, very fundamental, strong, compelling reason to do so, and it acts with surgical precision so that it takes no more than the compelling reason justifies.

    From our Appeal Brief-
    The district court found that “Proponents’
    evidentiary presentation was dwarfed by that of plaintiffs,” and concluded that Proponents “failed to build a credible factual record to support their claim that Proposition 8 served a legitimate government interest.” ER 46. In light of Proponents’ inability to identify a single legitimate interest furthered by Proposition 8, the court concluded that, under any standard, Proposition 8 violated both the Due Process
    and Equal Protection Clauses.

    It has been a while but I do recall our attorneys claiming a violation of the 5th Amendment Due Process and the 14th Amendment Equal Protection. Maybe there is a Due Process Clause of the 14th Amendment but for some reason it has stuck in my head that we are arguing Due Process under the 5th Amendment.

  • 129. Mark  |  February 22, 2012 at 2:51 pm

    Here is the text:

    On February 7, 2012, we denied the motion of Chuck Storey, County Clerk of Imperial County, to intervene as a Defendant-Appellant in this appeal. Storey has not filed a new motion to intervene in this appeal, and we have denied by separate order his motion to intervene in Nos. 10-16696 and 11-16577. Storey has filed in this appeal a motion to extend the time for filing a petition for rehearing. We deny that motion as moot, on the basis that Storey is not entitled to petition for rehearing.

    I guess the ninth has spoken.

  • 130. Kathleen  |  February 22, 2012 at 4:17 pm

    Nowhere, in all the copy and paste you did, is there any mention of the 5th Amendment. Our attorneys would not argue Due Process under the 5th Amendment because they understand Constitutional law and Prop 8 is a state law, not federal, and the 5th Amendment doesn't apply to the states.

  • 131. Leo  |  February 22, 2012 at 6:55 pm

    Before I go looking for one, what exactly are the parameters of this challenge? A single-issue group like NOM with an antigay mission as opposed to an organization that pursues antigay goals among others? Anywhere in the world or just in Western democracies?

    I could easily name a group that has provided antigay funding without having a religious dogma at its core: Target.

    It may well be true that as a matter of observation fixed in time and place (as opposed to a general rule that I regarded it as), all organized opposition to gay rights in today's Western democracies has roots in religion. But I would submit that such an observation by itself is not very useful. (What cause of action does it suggest?)

  • 132. Str8Grandmother  |  February 22, 2012 at 8:00 pm

    Okay.
    What is Judge Walker referring to when he asks this-

    THE COURT: Should the review here be different with
    respect to your Due Process claim and your Equal Protection claim?

  • 133. Kathleen  |  February 22, 2012 at 8:14 pm

    He's referring to due process and equal protection claims under the Fourteenth Amendment. As I said in my original explanation "…case law over the years has assured that most (not all) of the rights guaranteed by the 5th Amendment are guaranteed under the Due Process clause of the 14th Amendment." (emphasis added).

    Read the 14th Amendment: "No State shall … deprive any person of life, liberty, or property, without due process of law… "

  • 134. Prop 8 Trial Tracker &raq&hellip  |  February 23, 2012 at 12:50 pm

    […] Tuesday, the proponents of Prop 8 filed a motion to have their appeal of Judge Walker’s decision striking down Prop 8 reheard by a larger en […]

  • 135. Bob  |  February 23, 2012 at 2:59 pm

    what god wants is all speculation at best,,, any challenge of theology only brings me to the point of saying we'll only know for sure when it's all over,,,or like Carpool cookie says,, the fat lady sings,,, meantime,,,, play nice treat your neigbour as yorself,,, be civil,,,,

    and even the bible makes distinction between secular laws and sacred ones,,,, love the last court ruling on the DOMA case,,, it really clarifies the distinction between the two….. we're getting EQU
    AL under secular laws,,,,,,, everyone else back off!!!!!!

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