(Update 3:40 p.m. The court just sent out a notice that tomorrow's filing will indeed relate to the petition for rehearing en banc.)
If the 9th Circuit denies the request, Prop 8 supporters will almost certainly ask the United States Supreme Court to hear the case.
Proponents of Prop 8, California's same-sex marriage ban, asked the 9th Circuit for the en banc review in February, after a ruling by a three-judge panel upheld Judge Vaughn Walker's 2010 decision striking down the law as unconstitutional. (You can read the petition for the en banc panel here.)
In the 2-1 decision validating Walker's ruling, the court wrote: "Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples."
Judges Stephen Reinhardt and Michael Daly Hawkins, appointed by Democrats, voted to uphold Walker's ruling. Judge N. Randy Smith, appointed by George W. Bush, dissented, asserting he wasn't convinced that there isn't a rational reason behind the ban.
As Scott Shafer reported at the time, "one of the unknowns before the decision was whether the ruling would be broad, having national significance, or a narrower one that focused on Prop 8 in California. The decision was a narrow one, focusing on the proposition itself and the fact that California voters withdrew a right that had existed before Prop 8 was passed. The narrower ruling might make it a little less likely that the Supreme Court would take the case up, but that remains to be seen."
One legal analyst Shafer spoke to said the majority opinion was written with an eye toward dissuading the Supreme Court from hearing the case. "By limiting the ruling and the reasoning to California and to Proposition 8," said UC Davis' Vik Amar, "the Ninth Circuit judges at least give the Supreme Court an excuse not to step in."
After the filing asking for the en banc panel, Shafer talked to Hastings law professor Rory Little about the procedure for and the legal strategy behind the request. Edited transcript
Scott Shafer
Explain the en banc process.
Hastings Law Professor Rory Little
Normally the filing is styled as a petition for a rehearing or for a rehearing en banc. A rehearing by the original panel is not granted very often. It's possible that the original panel either determines that the petitioners have shown an obvious error, so we don't need to go en banc because we can correct it ourselves, or the panel will sometimes adjust their opinion trying to head off an en banc. They're not likely to consider granting a rehearing of their own, but you never know.
In a case like this, almost certainly the panel will refer it to the en banc court. It would then go to a judge who's called the en banc coordinator. That coordinator will send it out and say here's a petition for rehearing en banc – and they get a ton of these. But this one will get special attention.
A majority of active judges in the circuit needs to grant an en banc hearing. That's 13 votes, which is very hard to get in a circuit that has 7,000 – 8,000 appeals filed a year. They grant maybe 15-20 en bancs a year.
I think [Prop 8 proponents] are pretty disappointed with Judge Smith's dissent, which was not a ringing Scalia-like forceful "this is wrong." It was more like "we should be cautious, although there are a lot of good points here."
The Supreme Court has said more than once that the 9th circuit ought to use its en banc power to clear up problematic decisions before the cases get to us. Then there are other judges who believe that if a case is an outlier, it's the Supreme Court's job to clear it up, not the en banc court.
Here's the kind of case that's always granted en banc: a case in which different panels of the 9th Circuit have reached opposite conclusions, meaning an intra-circuit conflict. This case is not going to have any intra-circuit conflicts associated with it. The other kind of case is an inter-circuit conflict, where the opinion of the panel conflicts with opinions from other circuits.
The Prop 8 backers will assert that the panel's opinion conflicts with Supreme Court authority. The other thing they'll say is this is a matter of exceptional importance, even though it's a California case, because it's a huge state and also because parts of the panel's opinion cannot be limited to California.
For example, the panel's rejecting the pro-Prop 8 rationale for the law as not having a rational basis is not restricted to California. That rational basis analysis, you would think, applies to virtually any gay rights case.
There are judges on the circuit who believe that if there's an inter-circuit conflict, that's not a job for the en banc court, it's a job for the Supreme Court. But the Supreme Court, frankly, believes that 9th circuit panels generate more outlier decisions, and that a number of decisions every year are obviously incorrect. So they think these cases should be handled by the circuit en banc and not by the Supreme Court in a summary reversal. Every year a large number of summary reversals by the Supreme Court are from the 9th circuit.
Scott Shafer
What’s the legal strategy in asking for an en banc panel? The en banc panel is chosen at random, so it's a bit of a crapshoot, isn't it?
Rory Little
The strategy is that if they ask for en banc and it's denied, then in a sense they've exhausted all the remedies, and it makes it a slightly stronger case for Supreme Court review. Because the Supreme Court often says 'why didn't you ask for an en banc hearing?'
Secondly, my guess is they believe they would do better if the right judges were put on the en banc panel. If they get O`Scannlain or Bybee or Ikuta my guess is they might get a stronger dissent.
I think they're pretty disappointed with Judge Smith's dissent, which was not a ringing Scalia-like forceful "this is wrong." It was more like "we should be cautious, although there are a lot of good points here."
Here's the best result for proponents: They don't get enough votes for en banc, but they get a forceful dissent from the denial of en banc from O`Scannlain and Bybee and whoever they can pick up, which they can then use as their petition to the Supreme Court. Bybee and O`Scannlain have had a number of cases granted in the last five years from their dissents from en banc. Those guys are in the business of writing cert petitions, basically. And they're powerful writers.
Scott Shafer
In terms of timing, do new briefs have to be filed with the en banc panel?
Rory Little
They do not have to have a second round of briefing. There are circuits that routinely do en banc without new briefs being filed. The 9th Circuit has tended to ask for a new en banc briefing, because sometimes the cases on which they grant en banc haven't been briefed very well, frankly. But that's hard to say in this case.
There will be people really strategically maneuvering within the court on this one, on both sides. There is an argument that says, fine, let's re-hear it en banc, and now we'll get eight judges to say it's unconstitutional instead of just two.
