Today, Feb. 21, marks a big deadline in the Prop 8 case that those of us who have been counting the days since the Ninth Circuit's decision have been eagerly anticipating: the last day that the proponents of Prop 8 can file a petition for rehearing with the 9th Circuit. The proponents have 14 days from the initial decision to do so, meaning that if they do not request an en banc review of the Feb. 7 decision with a larger panel of the appeals court, the three-judge panel's ruling will be the last word at this level of appeal.
At this point, there's no reason to speculate on whether or not the proponents will actually file for a rehearing today, as they may be waiting until the last moment to do so. One question that is probably on many minds, though, is what happens to the stay depending on the proponents' actions today.
In its ruling on Feb. 7, the Ninth Circuit wrote that the mandate (that is, the official notice of the decision) will not go into effect until seven days after the deadline for a rehearing petition expires, or seven days after a rehearing is denied. What that means is that the Ninth Circuit's stay on Judge Walker's ruling striking down Proposition 8 will be lifted Feb. 28, seven days after today's deadline, should the proponents choose not to file for rehearing. If the proponents do file for a rehearing, the stay is automatically extended until that rehearing is either denied or accepted and then ruled on, both of which could take some time.
Even if the proponents do not file for a rehearing today, however, it's important to note that it is only the three-judge panel's initial stay that will expire on Feb. 28. Regardless of what they do today, the proponents have a full 90 days following the decision to seek Supreme Court review. Should they choose not to petition for rehearing, the proponents could still request an extension of the stay from the Ninth Circuit pending Supreme Court review. Should that request be denied, they could petition the Supreme Court. Justice Kennedy, who is responsible for petitions from the Ninth Circuit, could then either grant a stay on his own or refer it to the full court.
Today is certainly an important day no matter how the proponents of Prop 8 decide to act, because it gives us insight into their strategy moving forward. Nonetheless, it is too soon to say when marriages could resume in California.
This post was co-written with Prop8TrialTracker.com's Jacob Combs.
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