Metro Weekly reports that Charles Cooper, lead attorney for the proponents of Prop 8, has informed them that his team will ask the full Ninth Circuit Court of Appeals to review the three-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 that his team would make the official filing later this afternoon, before today's deadline for rehearing.
As written here on The Huffington Post this morning, the proponents' decision to seek en banc review at the Ninth Circuit means that 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 Ninth 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 that the road to a final decision on Prop 8 just got much 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 Ninth 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 Ninth Circuit that the appeals panel's decision needs to be reconsidered, especially given how narrow the ruling was.
Our side has already won twice in court, and the other side's weak arguments show little promise of becoming stronger with time.