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En banc rehearings: What they mean for marriage equality in the Ninth Circuit and the First Circuit

9th Circuit Court of Appeals DOMA trials Marriage equality Prop 8 trial

By Jacob Combs

Today, of course, we’re all looking forward to the Ninth Circuit’s ruling (which we expect to be released on the court’s website around 10:00 a.m. Pacific) regarding whether or not the Prop 8 case will be reheard en banc by an 11-judge panel of the appeals court.  Because of this focus on appellate court process today, I thought I’d take a little time to go into more detail about what the en banc process entails and what it could mean for another important marriage equality case that made news last week: the striking down of DOMA by the First Circuit Court of Appeals.

Veteran readers of and followers of the Prop 8 trial might easily think, “wait, hasn’t the Ninth Circuit already ruled on the constitutionality of Prop 8?”  The answer is yes, the Ninth Circuit did issue a ruling this February that uphold the lower court’s decision that Prop 8 is unconstitutional, but that wasn’t the last stop for the case even within the Ninth Circuit itself.

In the simplest and broadest sense, there are three levels that make up the federal courts in the United States.  The first and lowest level is made up of the district courts, which are apportioned by state.  In California, which is the largest state in the union, there are several district courts.  Judge Vaughn Walker heard the Prop 8 case in its first form in the Northern District Court of California.  While district courts only have the first say on any given issue, they are extremely important, because they are the only levels where witnesses are brought into court to testify, as several did during the Prop 8 trial.  The highest court in the United States is, of course, the Supreme Court, which has the final say on any case it takes up.  The Supreme Court takes cases by discretion; that is, they choose what to hear and what not to hear.

In between lie the appellate courts, and it’s there that things get a little bit complicated.  The country is divided up into 13 Courts of Appeal, with California falling under the Ninth Circuit, which is the largest in the U.S.  Any case that has been decided by a trial court has an automatic right to appeal, although, as we all know, these appeals often take a lot of time.

Smaller appellate courts often have a handful of judges on staff, like the First Circuit, which has five active judges.  The Ninth Circuit, on the other end of the spectrum, has 29 active judgeships.  Because of the enormous number of cases that come to the appellate courts throughout the year, appeals are assigned to 3-judge panels, chosen at random, who consider the ruling of the lower district court and either uphold it or reverse it.  Sometimes, the appeals courts remand the case, sending it back to the district court.  This first 3-judge step is the guaranteed appeal that all cases are entitled to.

After a 3-judge panel has ruled, the lower side can either appeal to the U.S. Supreme Court, or they can choose to seek an en banc rehearing, in which all of the active judges in a specific circuit rehear the appeal.  The earlier 3-judge panel ruling is vacated, and the case is considered anew.  These en banc appeals are not guaranteed, and are rarely granted, due to the inherent complexity of having a large number of judges hear a case together in one location.

Because of its size, the Ninth Circuit has its own en banc procedures: since it is impractical to have 29 judges hear one case, en banc panels in the Ninth Circuit have 11 judges on them, with 10 chosen at random and the Chief Judge, Alex Kozinski, joining them.  Intriguingly, this means that en banc decisions in the Ninth Circuit do not necessarily reflect the majority opinion of the entire court.  For this reason, en banc rehearings in the Ninth Circuit are unlikely to be granted.  Nevertheless, today’s announcement will tell us whether a new 11-judge panel will rehear the merits of Judge Walker’s district court decision (essentially making it as though the earlier 3-judge decision never occured), or whether that earlier decision stands and we move straight on to the Supreme Court, which could easily decline to hear the case.

What does all this mean, then, for the DOMA ruling recently handed down by the First Circuit?  Because that ruling was unanimous and signed by all three judges, it is in essence en banc-proof, since there are only five judges total in the circuit.  (Technically, the First Circuit is a 6-person court, but there is currently one vacant seat.)  This means that it is highly unlikely a majority would vote to rehear the case.

Intriguingly, though, an eventual First Circuit decision on the DOMA case could end up being heard by only eight judges, since there is a chance that Justice Elena Kagan could recuse herself given her likely past involvement as Solicitor General in deciding the Justice Department’s position towards previous DOMA cases.  In the event of a 4-4 split on the Supreme Court, the First Circuit ruling would stand, meaning that DOMA would be unconstitutional, but not by virtue of a sweeping majority decision by the Supreme Court decision saying so.  Technically, the decision would be limited to the First Circuit only, although such a ruling would have an effect on DOMA cases in the other circuits as well.

With DOMA certainly on its way to the Supreme Court, we will find out later today whether Prop 8 will join it very soon.  On the other hand, we could be looking at a good deal more waiting time in the Ninth Circuit before Prop 8 makes its way onto the Supremes’ desks


  • 1. Bill S.  |  June 5, 2012 at 8:19 am

    Correction: There are actually 13 Circuit Courts of Appeal: #s 1–11 but also the District of Columbia circuit which serves only DC and the Federal Circuit* which serves the entire country but only for cases that deal with certain subject matters (like patent infringement cases among others).

    *Although this court is called the Circuit Court of Appeals for the Federal Circuit, all Circuit Courts of Appeal are federal courts.

  • 2. Bill S.  |  June 5, 2012 at 8:24 am

    Also, a tied vote at the Supreme Court *upholds* the lower court decision but it does not set national precedent. If this were to happen with the 1st Circuit's DOMA decision, the 1st Circuit's ruling would be upheld but it would still only apply to Maine, New Hampshire, Massachusetts, Rhode Island, and Puerto Rico (the states served by that circuit).

  • 3. fRaNkLiN  |  June 5, 2012 at 8:38 am

    A tie is only possible if a judge recuses themselves. Since Sotamayor has chosen to hear the challenge to the healthcare law, it appears that she feels as though enough time has now passed that her involvement in the Justice Department discussions are now moot. Further, given the "evolvement" of the Justice Department's briefs on DOMA, it seems any knowledge of discussions during her tenure at the Justice Department would be irrelevant. I think the general consensus at this point is that she would not recuse, and I wouldn't expect any other justice to do so either.

  • 4. Bill S.  |  June 5, 2012 at 8:51 am

    I think you mean Kagan, not Sotomayor, but this is good news. We need a definitive national resolution to this issue.

  • 5. Scott Wooledge  |  June 5, 2012 at 8:55 am

    Recusing seems to be a standard the right holds over the left, but no such standard applies to Scalia, Thomas or other conservatives, if history indicates anything.

  • 6. fRaNkLiN  |  June 5, 2012 at 9:20 am

    I notice that you didn't include Justice Roberts on your list of "conservatives"! (I agree)

  • 7. fRaNkLiN  |  June 5, 2012 at 9:12 am

    I did. I had Sotamayor on my brain from another discussion.

  • 8. Sean  |  June 5, 2012 at 11:23 am

    I bet all hell would break loose if married PR gays received federal benefits before committed couples in CA and NY.

  • 9. fRaNkLiN  |  June 5, 2012 at 8:26 am

    "Because that ruling was unanimous and signed by all three judges, it is in essence en banc-proof, since there are only five judges total in the circuit… This means there is literally no majority to vote for a rehearing, so there is no reason petitioning for it."

    I don't necessarily agree with the last part of your statement. The decision is "en banc proof", but if an en banc panel was requested, it's not a foregone conclusion that the court would refuse. The decision issued by the 3 judge panel noted that their hands were somewhat tied by precedent claiming that gays and lesbians are not a suspect class and that only an en banc panel could reverse that decision. I don't know why proponents would request an en banc panel from the first circuit, but it's possible that the court could accept in order to consider this issue, as well as a number of others, with the full court.

  • 10. Lymis  |  June 5, 2012 at 8:59 am

    Wouldn't that be delightful? Getting the "not a suspect class" ruling overturned and setting a new precedent for that, in the First Circuit, at least.

  • 11. Kathleen  |  June 5, 2012 at 9:03 am

    Plaintiffs in Gill already requested an initial en banc hearing to address just this question (standard of review in 1st Circuit) and the Court denied that request. I don't know why the Court would now grant en banc review to overturn the 3-judge panel to reconsider the question.

  • 12. fRaNkLiN  |  June 5, 2012 at 9:18 am

    I think the First Circuit denied an initial en banc request as they usually do. That the plaintiffs requested the initial en banc review and used the standard of review as their reasoning, the denial of the initial en banc panel isn't a rebuke of that issue. The first circuit could have rejected the initial en banc panel for a variety of reasons, usually that they prefer for the case and record to be developed by the smaller panels before an en banc panel is convened.

  • 13. Alan_Eckert  |  June 5, 2012 at 8:43 am

    Just waiting until 10ish now…

  • 14. _BK_  |  June 5, 2012 at 9:30 am

    I had thought that the decision was being released tomorrow, so imagine my delightful surprise when visiting P8TT just now! Can't wait.

  • 15. Jacob Combs  |  June 5, 2012 at 9:12 am

    Excellent points, all, and thank you for them! I made a few changes to make things clearer. I agree with Kathleen that en banc rehearing in the First Circuit seems like a vanishingly small possibility, although of course there is always room for surprises. With Justice Kagan, I certainly don't think she would have to recuse herself, but it's an interesting eventuality to note.

  • 16. Bob  |  June 5, 2012 at 9:47 am

    my clock say 9:45 waiting!!!!!! reading all the thoughtful commentary,,, glad for Kathleen's input,,,,

  • 17. Scott  |  June 5, 2012 at 9:51 am


  • 18. fromdamoon  |  June 5, 2012 at 9:52 am

    I just heard en banc hearing was denied!!!! 🙂

  • 19. peterplumber  |  June 5, 2012 at 9:52 am

    Notice of Docket Activity

    The following transaction was entered on 06/05/2012 at 9:47:26 AM PDT and filed on 06/05/2012
    Case Name:Kristin Perry, et al v. Edmund G. Brown, Jr., et al
    Case Number: 10-16696


    Docket Text:
    Filed Order for PUBLICATION (STEPHEN R. REINHARDT, MICHAEL DALY HAWKINS and N. RANDY SMITH) (Dissent by Judge O'Scannlain, Concurrence by Judge Reinhardt) A majority of the panel has voted to deny the petition for rehearing en banc. Judge N.R. Smith would grant the petition. The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the non-recused active judges in favor of en banc consideration. Fed. R. App. P. 35. The petition for rehearing en banc is DENIED. The mandate is stayed for ninety days pending the filing of a petition for writ of certiorari in the Supreme Court. If such a petition is filed, the stay shall continue until final disposition by the Supreme Court. [8202067] [10-16696, 11-16577] (RP)

  • 20. Leo  |  June 5, 2012 at 9:58 am

    Dissent by Judge O'Scannlain

    I am shocked. Shocked, I tell you.

  • 21. _BK_  |  June 5, 2012 at 10:02 am

    I want to read it. Same with the concurrence.

  • 22. Leo  |  June 5, 2012 at 10:05 am

    Kathleen's comment below has a link to the document with both.

  • 23. Str8Grandmother  |  June 5, 2012 at 9:54 am

    En Banc Heqring DENIED!!!!!
    I was on the phone with the 9th Circuit and it wasn't there and during our conversation she says, "Wait a minute here it is"

  • 24. Kevin  |  June 5, 2012 at 9:54 am

    Amazing. Too bad the stay remains in effect.

  • 25. DonG90806  |  June 5, 2012 at 9:54 am

    MSNBC just announced that NO en banc hearing.

  • 26. Bob  |  June 5, 2012 at 9:55 am


  • 27. Bob  |  June 5, 2012 at 9:57 am

    but the stay is in place for 90 days,,,

  • 28. Kathleen  |  June 5, 2012 at 9:59 am

    Denied; stay remains in place for at least 90 days, longer if appealed to Supreme Court. And, as anticipated, O'Scannlain dissents.

  • 29. Lesbians Love Boies  |  June 5, 2012 at 10:01 am


  • 30. Bill S.  |  June 5, 2012 at 10:00 am

    Will they publish the vote?

  • 31. Kathleen  |  June 5, 2012 at 10:08 am

    No. They don't tell you what the vote is, only whether or not a majority voted in favor. The exception is when, like here, the original panel votes and/or individual judges write or join in concurring/dissenting opinions. What we've gotten in the way of information on votes is all we'll get and it's more than we know in many cases.

  • 32. Alan_Eckert  |  June 5, 2012 at 10:14 am

    At least 3 voted for en banc hearing.

  • 33. fRaNkLiN  |  June 5, 2012 at 10:28 am

    SMITH, O’SCANNLAIN, BYBEE and BEA would have voted to hear the case en banc because they are pissed off that Obama supports equal marriage and want to stick it to the gays.

  • 34. Kathleen  |  June 5, 2012 at 11:30 am

    These are not necessarily the only judges who voted to rehear. They're just the only ones who decided to put their name on their vote. All we know for sure is (1) a majority did not vote to rehear, (2) the way the named judges voted. There are a lot more judges in the 9th Circuit.

  • 35. Mackenzie  |  June 5, 2012 at 10:06 am

    Happy dance!!!! 🙂

  • 36. fRaNkLiN  |  June 5, 2012 at 10:07 am

    The dissent is nakedly political. It's unusual for judges to issue such an inflamatory statement, and quite honestly exposes the ones that signed on to it. The response to the dissent is reasoned and even toned.

    Funny how the the dissent failed to mention that a majority of Colorado citizens also passed the law that was overturned in Romer.

  • 37. Alan_Eckert  |  June 5, 2012 at 10:18 am

    The dissent reads just like a NOM statement. They got the key points in there:

    "a definition of marriage that has existed for millennia;" "overruled the will of seven million CaliforniaProposition 8 voters;" "Judge N.R. Smith’s excellent dissenting opinion"

  • 38. fRaNkLiN  |  June 5, 2012 at 10:38 am

    53.41% of Colorado citizens voted for Amendment 2 in 1992. The Supreme Court wasted no time overturning their bigotry.

  • 39. peterplumber  |  June 5, 2012 at 2:30 pm

    What about the 6.5 million voters who voted NO on Prop 8? Won't they negate the same amount of YES voters? If so, then there are only 500,000 voters who are about to have their vote overturned.

  • 40. Jon  |  June 5, 2012 at 10:27 am

    It does seem that O'Scannlain wasted his chance to write a persuasive dissenting opinion here…

  • 41. fRaNkLiN  |  June 5, 2012 at 10:39 am

    He got to use the word "firestorm".

  • 42. MFargo  |  June 5, 2012 at 1:26 pm

    Mostof of what Judge O'Scannlian has to say was addressed either by Judge Walker's ruling or Olson/Boies arguments at trial.

  • 43. NEWSFLASH: Another Marria&hellip  |  June 5, 2012 at 4:16 pm

    […] to invalidate the earlier ruling and to rehear the case en banc—that is, with an 11-judge panel (here‘s an explanation of what this would have meant). But the court judged that unnecessary […]

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