Supreme Court Clears Way for Release of Footage From Landmark Trial That Legalized Same-Sex Marriage in California
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In 2017 KQED asked the Northern District of California to unseal the trial tapes, arguing that the recordings were a vital part of the public record in a historic legal case. While the court did not agree to immediately release the tapes, it ordered them to be unsealed on Aug. 12, 2020 — 10 years after the case closed. In declining to hear an appeal of lower court rulings, the Supreme Court effectively cleared the way for the tapes to be released.\u003c/p>\n\u003cp>“After today’s ruling by the U.S. Supreme Court, the public will finally be able to watch the testimony that Judge Vaughn Walker considered in deciding that same-sex couples have the right to marry,\" said Thomas R. Burke, KQED's attorney. \"There’s no doubt that the video will become a valuable instrument to educate the public about this historic moment.”\u003c/p>\n\u003cp>\"Great news! Love wins again and now, so does transparency,\" said Jeff Zarillo, one of the original plaintiffs in the case.\u003c/p>\n\u003cp>Holly Kernan, KQED's chief content officer, agreed. \"If our systems work behind closed doors, with no press or public access, we have no idea how decisions are made, nor what arguments are leading to these decisions,\" she said. \"KQED wants more sunlight on our legal system and we will fight on behalf of the public to get that access.\" \u003c/p>\n\u003cp>[aside postID=\"news_11919970,news_11922040\" label=\"Related Posts\"]Supporters of Proposition 8 – a California ballot proposition passed by voters in 2008 that would have banned same-sex marriage in the state – previously appealed to the 9th Circuit Court of Appeals, seeking to have the tapes sealed permanently.\u003c/p>\n\u003cp>That court dismissed that request, saying the petitioners lacked legal standing for their appeal. The court also batted away the contention that unsealing the tapes would lead to harm or harassment of anyone directly involved in the trial and confirmed the lower court’s decision to unseal the tapes.\u003c/p>\n\u003cp>In a last-ditch effort to keep the tapes sealed, Proposition 8 proponents asked the Supreme Court to take up the case. In their \u003ca href=\"https://www.supremecourt.gov/DocketPDF/21/21-1304/219553/20220328101818830_Hollingsworth%20v.%20Perry%20Petition.pdf\">March 28, 2022 petition\u003c/a>, attorneys for Proposition 8 said the court's intervention was needed to \"prevent a grievous injury\" to the ballot measure's backers and to \"the integrity of the federal judiciary.\"\u003c/p>\n\u003cp>This entire issue began over 12 years ago, when Judge Vaughn R. Walker, the federal court judge who presided over the 2010 Perry v. Schwarzenegger trial, announced that he wanted the entire proceeding to be broadcast live via closed-circuit television with viewing in federal courthouses in San Francisco, Pasadena, Seattle and Portland, Oregon.\u003c/p>\n\u003cp>That would have made Perry v. Schwarzenegger the first federal trial to be broadcast and recorded, with videotapes to be made available for later viewing on YouTube.\u003c/p>\n\u003cp>But the Proposition 8 defense team objected as the bench trial was starting and the Supreme Court intervened, stopping the live broadcast before it began. The court said Walker failed to go through the appropriate process for getting approval for such a broadcast.\u003c/p>\n\u003cp>Over objections from Proposition 8 attorneys, Walker said he would videotape the trial anyway for personal use in his chambers to help him write the decision, which ultimately struck down Proposition 8.\u003c/p>\n\u003cp>Responding to the Supreme Court's refusal to take up the case and allow the lower court rulings to stand, Walker, who is now retired from the bench, said the justices did the right thing.\u003c/p>\n\u003cp>\"With everything else going on in the world, not weighing in on this issue was an easy decision,\" said Walker. He added that the format of the Prop. 8 trial, with its expert witnesses providing testimony about the history, economics, sociology and psychology of gender roles and same-sex marriage could be a blueprint for judges in other controversial issues, including abortion.\u003c/p>\n\u003cp>\"It was testimony by people who understood the whole panoply which gender plays in our society and in personal relationships,\" Walker said. \"Trials reveal things that simply cannot come out when you're scratching through old dusty books and records of the long past. And I think there are going to be many enactments affecting the abortion rights in the various states in the wake of the Dobbs decision.\"\u003c/p>\n\u003cp>[ad fullwidth]\u003c/p>\n\u003cp>In seeking to block release of the videotapes, attorneys for the ballot measure's proponents argued to the Supreme Court that Walker \"solemnly promised\" in court that the tapes would not be made public, and that doing so now would undermine public faith in the courts.\u003c/p>\n\u003cp>In a \u003ca href=\"https://www.supremecourt.gov/DocketPDF/21/21-1304/226576/20220531111532780_Hollingsworth%20v.%20Perry%20--%20Brief%20in%20Opp.pdf\">response brief (PDF)\u003c/a>, attorneys for KQED argued that there was never a promise to keep the trial tapes sealed beyond 10 years and that Proposition 8 supporters failed to demonstrate any concrete injury that would come from releasing them.\u003c/p>\n\u003cp>Kris Perry, one of the original plaintiffs along with her partner Sandy Stier, said release of the tapes was long overdue.\u003c/p>\n\u003cp>\"Since the 2010 ruling striking down Proposition 8, we have fought to have the video record of our historic trial shared with the public,\" Perry said. \"There is no more important time to expose the discriminatory rhetoric of proponents and the courage of the experts, attorneys and plaintiffs in standing up against hate. Even though it's been 12 years since our ruling, we know the fight for marriage equality and many other basic civil rights is still essential and this video shows the evidence for why.\"\u003c/p>\n\u003cp>The 2009 lawsuit filed by supporters of same-sex marriage against Proposition 8 was considered risky by some progressive legal groups, which worried that a setback in federal court could take decades to undo.\u003c/p>\n\u003cp>The trial gained national attention, in part because the legal team seeking to have Proposition 8 struck down was led by conservative Theodore Olson and liberal David Boies, who were on \u003cem>opposite\u003c/em> sides of the infamous Bush v. Gore case following the disputed 2000 presidential election.\u003c/p>\n\u003cp>The three-week trial in 2010 considered a wide range of issues, including the history of marriage, the political power of the LGBTQ+ community, the social and psychological harm of so-called \"conversion therapy\" and how the plaintiffs and their children were personally affected by being denied the right to marry.\u003c/p>\n\u003cp>\u003ca href=\"https://scholar.google.com/scholar_case?case=1984506746130471324&q=Perry+vs.+Schwarzenegger&hl=en&as_sdt=2006\">Judge Walker's decision in August 2010\u003c/a> struck down \u003cspan style=\"font-weight: 400\">Proposition\u003c/span> 8 on the basis that it violated the due process and equal protection clauses of the 14th Amendment, saying California had no rational interest in denying marriage licenses to gay and lesbian couples. The decision was later upheld in a 2-1 decision by the Ninth Circuit Court of Appeals. In 2013, the Supreme Court declined to take up the case, ruling narrowly that \u003cspan style=\"font-weight: 400\">Proposition \u003c/span>8 supporters lacked legal standing to appeal the lower court decisions, which opened the way for same-sex marriages to resume in California after a five-year hiatus.\u003c/p>\n\u003cp>Hollingsworth v. Perry et al was one of dozens of cases \"denied certiorari\" or denied review by the court today.\u003c/p>\n\u003cp>When asked before Tuesday's decision when the trial tapes would be made available, a spokesperson for the courts said \"we will work with the judge in the underlying case to make them available promptly. They'll be posted on a publicly available site.\" No additional details were given.\u003c/p>\n\u003cp>[ad floatright]\u003c/p>\n","blocks":[],"excerpt":"Tuesday's decision is the culmination of a 12-year legal effort that began in 2009 when a media coalition led by KQED sought to have the Proposition 8 trial broadcast.","status":"publish","parent":0,"modified":1665516446,"stats":{"hasAudio":false,"hasVideo":false,"hasChartOrMap":false,"iframeSrcs":[],"hasGoogleForm":false,"hasGallery":false,"hasHearkenModule":false,"hasPolis":false,"paragraphCount":27,"wordCount":1285},"headData":{"title":"Supreme Court Clears Way for Release of Footage From Landmark Trial That Legalized Same-Sex Marriage in California | KQED","description":"Tuesday's decision is the culmination of a 12-year legal effort that began in 2009 when a media coalition led by KQED sought to have the Proposition 8 trial broadcast.","ogTitle":"","ogDescription":"","ogImgId":"","twTitle":"","twDescription":"","twImgId":""},"disqusIdentifier":"11911275 https://ww2.kqed.org/news/?p=11911275","disqusUrl":"https://ww2.kqed.org/news/2022/10/11/supreme-court-ruling-clears-way-for-release-of-footage-from-landmark-trial-that-legalized-same-sex-marriage-in-california/","disqusTitle":"Supreme Court Clears Way for Release of Footage From Landmark Trial That Legalized Same-Sex Marriage in California","excludeFromSiteSearch":"Include","path":"/news/11911275/supreme-court-ruling-clears-way-for-release-of-footage-from-landmark-trial-that-legalized-same-sex-marriage-in-california","audioTrackLength":null,"parsedContent":[{"type":"contentString","content":"\u003cdiv class=\"post-body\">\u003cp>\u003cp>KQED scored a historic legal victory Tuesday when the U.S. Supreme Court declined to consider an effort to block the release of videotapes from the 2010 federal trial in San Francisco that ultimately led to the legalization of same-sex marriage in California.\u003c/p>\n\u003cp>Tuesday's decision is the culmination of a 12-year legal effort that began in 2009 when a media coalition led by KQED sought to have the trial broadcast. In 2017 KQED asked the Northern District of California to unseal the trial tapes, arguing that the recordings were a vital part of the public record in a historic legal case. While the court did not agree to immediately release the tapes, it ordered them to be unsealed on Aug. 12, 2020 — 10 years after the case closed. In declining to hear an appeal of lower court rulings, the Supreme Court effectively cleared the way for the tapes to be released.\u003c/p>\n\u003cp>“After today’s ruling by the U.S. Supreme Court, the public will finally be able to watch the testimony that Judge Vaughn Walker considered in deciding that same-sex couples have the right to marry,\" said Thomas R. Burke, KQED's attorney. \"There’s no doubt that the video will become a valuable instrument to educate the public about this historic moment.”\u003c/p>\n\u003cp>\"Great news! Love wins again and now, so does transparency,\" said Jeff Zarillo, one of the original plaintiffs in the case.\u003c/p>\n\u003cp>Holly Kernan, KQED's chief content officer, agreed. \"If our systems work behind closed doors, with no press or public access, we have no idea how decisions are made, nor what arguments are leading to these decisions,\" she said. \"KQED wants more sunlight on our legal system and we will fight on behalf of the public to get that access.\" \u003c/p>\n\u003cp>\u003c/p>\u003c/div>","attributes":{"named":{},"numeric":[]}},{"type":"component","content":"","name":"aside","attributes":{"named":{"postid":"news_11919970,news_11922040","label":"Related Posts "},"numeric":[]}},{"type":"contentString","content":"\u003cdiv class=\"post-body\">\u003cp>Supporters of Proposition 8 – a California ballot proposition passed by voters in 2008 that would have banned same-sex marriage in the state – previously appealed to the 9th Circuit Court of Appeals, seeking to have the tapes sealed permanently.\u003c/p>\n\u003cp>That court dismissed that request, saying the petitioners lacked legal standing for their appeal. The court also batted away the contention that unsealing the tapes would lead to harm or harassment of anyone directly involved in the trial and confirmed the lower court’s decision to unseal the tapes.\u003c/p>\n\u003cp>In a last-ditch effort to keep the tapes sealed, Proposition 8 proponents asked the Supreme Court to take up the case. In their \u003ca href=\"https://www.supremecourt.gov/DocketPDF/21/21-1304/219553/20220328101818830_Hollingsworth%20v.%20Perry%20Petition.pdf\">March 28, 2022 petition\u003c/a>, attorneys for Proposition 8 said the court's intervention was needed to \"prevent a grievous injury\" to the ballot measure's backers and to \"the integrity of the federal judiciary.\"\u003c/p>\n\u003cp>This entire issue began over 12 years ago, when Judge Vaughn R. Walker, the federal court judge who presided over the 2010 Perry v. Schwarzenegger trial, announced that he wanted the entire proceeding to be broadcast live via closed-circuit television with viewing in federal courthouses in San Francisco, Pasadena, Seattle and Portland, Oregon.\u003c/p>\n\u003cp>That would have made Perry v. Schwarzenegger the first federal trial to be broadcast and recorded, with videotapes to be made available for later viewing on YouTube.\u003c/p>\n\u003cp>But the Proposition 8 defense team objected as the bench trial was starting and the Supreme Court intervened, stopping the live broadcast before it began. The court said Walker failed to go through the appropriate process for getting approval for such a broadcast.\u003c/p>\n\u003cp>Over objections from Proposition 8 attorneys, Walker said he would videotape the trial anyway for personal use in his chambers to help him write the decision, which ultimately struck down Proposition 8.\u003c/p>\n\u003cp>Responding to the Supreme Court's refusal to take up the case and allow the lower court rulings to stand, Walker, who is now retired from the bench, said the justices did the right thing.\u003c/p>\n\u003cp>\"With everything else going on in the world, not weighing in on this issue was an easy decision,\" said Walker. He added that the format of the Prop. 8 trial, with its expert witnesses providing testimony about the history, economics, sociology and psychology of gender roles and same-sex marriage could be a blueprint for judges in other controversial issues, including abortion.\u003c/p>\n\u003cp>\"It was testimony by people who understood the whole panoply which gender plays in our society and in personal relationships,\" Walker said. \"Trials reveal things that simply cannot come out when you're scratching through old dusty books and records of the long past. And I think there are going to be many enactments affecting the abortion rights in the various states in the wake of the Dobbs decision.\"\u003c/p>\n\u003cp>\u003c/p>\u003c/div>","attributes":{"named":{},"numeric":[]}},{"type":"component","content":"","name":"ad","attributes":{"named":{"label":"fullwidth"},"numeric":["fullwidth"]}},{"type":"contentString","content":"\u003cdiv class=\"post-body\">\u003cp>\u003c/p>\n\u003cp>In seeking to block release of the videotapes, attorneys for the ballot measure's proponents argued to the Supreme Court that Walker \"solemnly promised\" in court that the tapes would not be made public, and that doing so now would undermine public faith in the courts.\u003c/p>\n\u003cp>In a \u003ca href=\"https://www.supremecourt.gov/DocketPDF/21/21-1304/226576/20220531111532780_Hollingsworth%20v.%20Perry%20--%20Brief%20in%20Opp.pdf\">response brief (PDF)\u003c/a>, attorneys for KQED argued that there was never a promise to keep the trial tapes sealed beyond 10 years and that Proposition 8 supporters failed to demonstrate any concrete injury that would come from releasing them.\u003c/p>\n\u003cp>Kris Perry, one of the original plaintiffs along with her partner Sandy Stier, said release of the tapes was long overdue.\u003c/p>\n\u003cp>\"Since the 2010 ruling striking down Proposition 8, we have fought to have the video record of our historic trial shared with the public,\" Perry said. \"There is no more important time to expose the discriminatory rhetoric of proponents and the courage of the experts, attorneys and plaintiffs in standing up against hate. Even though it's been 12 years since our ruling, we know the fight for marriage equality and many other basic civil rights is still essential and this video shows the evidence for why.\"\u003c/p>\n\u003cp>The 2009 lawsuit filed by supporters of same-sex marriage against Proposition 8 was considered risky by some progressive legal groups, which worried that a setback in federal court could take decades to undo.\u003c/p>\n\u003cp>The trial gained national attention, in part because the legal team seeking to have Proposition 8 struck down was led by conservative Theodore Olson and liberal David Boies, who were on \u003cem>opposite\u003c/em> sides of the infamous Bush v. Gore case following the disputed 2000 presidential election.\u003c/p>\n\u003cp>The three-week trial in 2010 considered a wide range of issues, including the history of marriage, the political power of the LGBTQ+ community, the social and psychological harm of so-called \"conversion therapy\" and how the plaintiffs and their children were personally affected by being denied the right to marry.\u003c/p>\n\u003cp>\u003ca href=\"https://scholar.google.com/scholar_case?case=1984506746130471324&q=Perry+vs.+Schwarzenegger&hl=en&as_sdt=2006\">Judge Walker's decision in August 2010\u003c/a> struck down \u003cspan style=\"font-weight: 400\">Proposition\u003c/span> 8 on the basis that it violated the due process and equal protection clauses of the 14th Amendment, saying California had no rational interest in denying marriage licenses to gay and lesbian couples. The decision was later upheld in a 2-1 decision by the Ninth Circuit Court of Appeals. In 2013, the Supreme Court declined to take up the case, ruling narrowly that \u003cspan style=\"font-weight: 400\">Proposition \u003c/span>8 supporters lacked legal standing to appeal the lower court decisions, which opened the way for same-sex marriages to resume in California after a five-year hiatus.\u003c/p>\n\u003cp>Hollingsworth v. Perry et al was one of dozens of cases \"denied certiorari\" or denied review by the court today.\u003c/p>\n\u003cp>When asked before Tuesday's decision when the trial tapes would be made available, a spokesperson for the courts said \"we will work with the judge in the underlying case to make them available promptly. They'll be posted on a publicly available site.\" No additional details were given.\u003c/p>\n\u003cp>\u003c/p>\u003c/div>","attributes":{"named":{},"numeric":[]}},{"type":"component","content":"","name":"ad","attributes":{"named":{"label":"floatright"},"numeric":["floatright"]}},{"type":"contentString","content":"\u003cdiv class=\"post-body\">\u003cp>\u003c/p>\n\u003c/div>\u003c/p>","attributes":{"named":{},"numeric":[]}}],"link":"/news/11911275/supreme-court-ruling-clears-way-for-release-of-footage-from-landmark-trial-that-legalized-same-sex-marriage-in-california","authors":["255"],"categories":["news_6188","news_8","news_13"],"tags":["news_27626","news_323","news_126","news_322","news_1244"],"featImg":"news_11926613","label":"news"},"news_99462":{"type":"posts","id":"news_99462","meta":{"index":"posts_1591205157","site":"news","id":"99462","score":null,"sort":[1371085233000]},"guestAuthors":[],"slug":"vaughn-walker-calls-getting-prop-8-case-my-oh-s-moment","title":"Prop 8 Judge Vaughn Walker: Courts' Change on Same-Sex Marriage Was 'Utterly Unimaginable'","publishDate":1371085233,"format":"aside","headTitle":"News Fix | KQED News","labelTerm":{"term":6944,"site":"news"},"content":"\u003cfigure id=\"attachment_99554\" class=\"wp-caption alignright\" style=\"max-width: 200px\">\u003ca href=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2016/06/Vaughn-Walker-Photo3.jpg\">\u003cimg class=\"size-full wp-image-99554\" src=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2016/06/Vaughn-Walker-Photo3.jpg\" alt=\"Vaughn-Walker-Photo\" width=\"200\" height=\"300\">\u003c/a>\u003cfigcaption class=\"wp-caption-text\">Former federal judge Vaughn R. Walker, who wrote the 2010 decision invalidating Proposition 8\u003c/figcaption>\u003c/figure>\n\u003cp>Ever since he struck down Proposition 8 in 2010, former federal judge Vaughn Walker has maintained a certain distance from the case. That’s probably wise, given that the Supreme Court has yet to make a final determination on his ruling.\u003c/p>\n\u003cp>So when Walker called and invited me to hear him speak about LGBT legal issues before a gathering of 25 or so criminal defense attorneys Monday night, how could I resist?\u003c/p>\n\u003cp>At the meeting, Walker outlined the history of homosexuality and the law. Born in 1944, Walker said the breadth of change in how the courts perceive gay rights is something that “I could not have imagined in my wildest dreams.” For emphasis, he added that the shift has been “utterly unimaginable.”\u003c/p>\n\u003cp>Recalling that day in 2009 when he first noticed a complaint in his “in box” titled Perry v. Schwarzenegger, it was, he said, “my oh-shit moment.” He realized the importance of the case challenging Prop. 8, but said he never thought it would attract the media attention it has. The Prop. 8 case is, he said, “the gift that keeps on giving.”\u003c/p>\n\u003cp>To Walker, the most fascinating moment in the March 26 oral arguments at the Supreme Court was this exchange between Justice Sonia Sotomayor and Prop. 8 attorney Charles Cooper.\u003c/p>\n\u003cblockquote>\u003cp>JUSTICE SOTOMAYOR: Outside of the - outside of the marriage context, can you think of any other rational basis, reason, for a state using sexual orientation as a factor in denying homosexuals benefits or imposing burdens on them? Is there any other rational decision ... that the Government could make? Denying them a job, not granting them benefits of some sort, any other decision?\u003c/p>\n\u003cp>MR. COOPER: Your Honor, I cannot. I do not have any -- anything to offer you in that regard.\u003c/p>\u003c/blockquote>\n\u003cp>\u003c!--more-->It was, said Walker, “a remarkable exchange” highlighting the extent to which equal treatment for gays and lesbians has become embedded in our culture.\u003c/p>\n\u003cp>[ad fullwidth]\u003c/p>\n\u003cp>And why did Walker choose to hold a trial with witnesses, rather than just take briefs and make a ruling?\u003c/p>\n\u003caside class=\"pullquote alignleft\">\u003cstrong>Walker said the breadth of change in how the courts perceive LGBT rights is something, “I could not have imagined in my wildest dreams.”\u003c/strong>\u003c/aside>\n\u003cp>“Trials have a cleansing effect,” he said. “It’s not always a Perry Mason moment, but there’s nothing like putting someone on the witness stand” and making them answer questions.\u003c/p>\n\u003cp>After the meeting, Walker and I strolled over to the Hyatt Regency, where we had a wide-ranging discussion about the Prop. 8 trial and the Supreme Court's pending decision. That was off the record, though I can say he drinks a Hendrick's gin martini up with two olives. And also: the judge says that unlike those of us in the media who are up early on SCOTUS decision days to catch first word of the ruling, he's a lot less obsessed with the case's final outcome.\u003c/p>\n\u003cp>\u003c/p>\n\u003cp>But at his talk with attorneys, Walker paraphrased former civil rights leader John Lewis, saying, “The leaders are scrambling to keep up with the people. There goes America. The laws some day will catch up.”\u003c/p>\n\n","blocks":[],"excerpt":null,"status":"publish","parent":0,"modified":1371087707,"stats":{"hasAudio":false,"hasVideo":false,"hasChartOrMap":false,"iframeSrcs":[],"hasGoogleForm":false,"hasGallery":false,"hasHearkenModule":false,"hasPolis":false,"paragraphCount":14,"wordCount":559},"headData":{"title":"Prop 8 Judge Vaughn Walker: Courts' Change on Same-Sex Marriage Was 'Utterly Unimaginable' | KQED","description":"Ever since he struck down Proposition 8 in 2010, former federal judge Vaughn Walker has maintained a certain distance from the case. That’s probably wise, given that the Supreme Court has yet to make a final determination on his ruling. So when Walker called and invited me to hear him speak about LGBT legal issues","ogTitle":"","ogDescription":"","ogImgId":"","twTitle":"","twDescription":"","twImgId":""},"disqusIdentifier":"99462 http://ww2.kqed.org/news/?p=99462","disqusUrl":"https://ww2.kqed.org/news/2013/06/12/vaughn-walker-calls-getting-prop-8-case-my-oh-s-moment/","disqusTitle":"Prop 8 Judge Vaughn Walker: Courts' Change on Same-Sex Marriage Was 'Utterly Unimaginable'","customPermalink":"2013/06/11/vaughn-walker/","path":"/news/99462/vaughn-walker-calls-getting-prop-8-case-my-oh-s-moment","audioTrackLength":null,"parsedContent":[{"type":"contentString","content":"\u003cdiv class=\"post-body\">\u003cp>\u003cfigure id=\"attachment_99554\" class=\"wp-caption alignright\" style=\"max-width: 200px\">\u003ca href=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2016/06/Vaughn-Walker-Photo3.jpg\">\u003cimg class=\"size-full wp-image-99554\" src=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2016/06/Vaughn-Walker-Photo3.jpg\" alt=\"Vaughn-Walker-Photo\" width=\"200\" height=\"300\">\u003c/a>\u003cfigcaption class=\"wp-caption-text\">Former federal judge Vaughn R. Walker, who wrote the 2010 decision invalidating Proposition 8\u003c/figcaption>\u003c/figure>\n\u003cp>Ever since he struck down Proposition 8 in 2010, former federal judge Vaughn Walker has maintained a certain distance from the case. That’s probably wise, given that the Supreme Court has yet to make a final determination on his ruling.\u003c/p>\n\u003cp>So when Walker called and invited me to hear him speak about LGBT legal issues before a gathering of 25 or so criminal defense attorneys Monday night, how could I resist?\u003c/p>\n\u003cp>At the meeting, Walker outlined the history of homosexuality and the law. Born in 1944, Walker said the breadth of change in how the courts perceive gay rights is something that “I could not have imagined in my wildest dreams.” For emphasis, he added that the shift has been “utterly unimaginable.”\u003c/p>\n\u003cp>Recalling that day in 2009 when he first noticed a complaint in his “in box” titled Perry v. Schwarzenegger, it was, he said, “my oh-shit moment.” He realized the importance of the case challenging Prop. 8, but said he never thought it would attract the media attention it has. The Prop. 8 case is, he said, “the gift that keeps on giving.”\u003c/p>\n\u003cp>To Walker, the most fascinating moment in the March 26 oral arguments at the Supreme Court was this exchange between Justice Sonia Sotomayor and Prop. 8 attorney Charles Cooper.\u003c/p>\n\u003cblockquote>\u003cp>JUSTICE SOTOMAYOR: Outside of the - outside of the marriage context, can you think of any other rational basis, reason, for a state using sexual orientation as a factor in denying homosexuals benefits or imposing burdens on them? Is there any other rational decision ... that the Government could make? Denying them a job, not granting them benefits of some sort, any other decision?\u003c/p>\n\u003cp>MR. COOPER: Your Honor, I cannot. I do not have any -- anything to offer you in that regard.\u003c/p>\u003c/blockquote>\n\u003cp>\u003c!--more-->It was, said Walker, “a remarkable exchange” highlighting the extent to which equal treatment for gays and lesbians has become embedded in our culture.\u003c/p>\n\u003cp>\u003c/p>\u003c/div>","attributes":{"named":{},"numeric":[]}},{"type":"component","content":"","name":"ad","attributes":{"named":{"label":"fullwidth"},"numeric":["fullwidth"]}},{"type":"contentString","content":"\u003cdiv class=\"post-body\">\u003cp>\u003c/p>\n\u003cp>And why did Walker choose to hold a trial with witnesses, rather than just take briefs and make a ruling?\u003c/p>\n\u003caside class=\"pullquote alignleft\">\u003cstrong>Walker said the breadth of change in how the courts perceive LGBT rights is something, “I could not have imagined in my wildest dreams.”\u003c/strong>\u003c/aside>\n\u003cp>“Trials have a cleansing effect,” he said. “It’s not always a Perry Mason moment, but there’s nothing like putting someone on the witness stand” and making them answer questions.\u003c/p>\n\u003cp>After the meeting, Walker and I strolled over to the Hyatt Regency, where we had a wide-ranging discussion about the Prop. 8 trial and the Supreme Court's pending decision. That was off the record, though I can say he drinks a Hendrick's gin martini up with two olives. And also: the judge says that unlike those of us in the media who are up early on SCOTUS decision days to catch first word of the ruling, he's a lot less obsessed with the case's final outcome.\u003c/p>\n\u003cp>\u003c/p>\n\u003cp>But at his talk with attorneys, Walker paraphrased former civil rights leader John Lewis, saying, “The leaders are scrambling to keep up with the people. There goes America. The laws some day will catch up.”\u003c/p>\n\n\u003c/div>\u003c/p>","attributes":{"named":{},"numeric":[]}}],"link":"/news/99462/vaughn-walker-calls-getting-prop-8-case-my-oh-s-moment","authors":["255"],"programs":["news_6944"],"categories":["news_6188"],"tags":["news_82","news_323","news_126","news_322","news_1196"],"label":"news_6944"},"news_91703":{"type":"posts","id":"news_91703","meta":{"index":"posts_1591205157","site":"news","id":"91703","score":null,"sort":[1363878014000]},"guestAuthors":[],"slug":"prop-8-what-you-need-to-know","title":"Prop. 8 at the Supreme Court: What You Need to Know","publishDate":1363878014,"format":"aside","headTitle":"News Fix | KQED News","labelTerm":{"term":6944,"site":"news"},"content":"\u003cp>In California's June 2000 primary, 61 percent of the electorate voted \"yes\" on \u003ca href=\"http://primary2000.sos.ca.gov/VoterGuide/Propositions/22text.htm\" target=\"_blank\">Proposition 22\u003c/a>, a measure that amended state law to read, \"Only marriage between a man and a woman is valid or recognized.\" The state Supreme Court overturned the law in 2008 as discriminatory, opening the way for same-sex couples to get legally married in the state. About 18,000 gay and lesbian couples took advantage of the chance to tie the knot.\u003c/p>\n\u003cfigure id=\"attachment_91707\" class=\"wp-caption alignleft\" style=\"max-width: 300px\">\u003ca href=\"http://ww2.kqed.org/news/2013/03/21/prop-8-what-you-need-to-know/supreme-court-decides-whether-of-not-to-review-challenge-of-californias-prop-8-4/\" rel=\"attachment wp-att-91707\">\u003cimg class=\"size-medium wp-image-91707\" src=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2013/03/RS1372_samesexmarriage20121130-300x200.jpg\" alt=\"Same-sex marriage proponent Kat McGuckin of Oaklyn, New Jersey, holds a gay marriage pride flag while standing in front of the Supreme Court November 30, 2012 in Washington, D.C. (Chip Somodevilla/Getty Images)\" width=\"300\" height=\"200\">\u003c/a>\u003cfigcaption class=\"wp-caption-text\">Same-sex marriage proponent Kat McGuckin holds a gay marriage pride flag while standing in front of the U.S. Supreme Court in November 2012. (Chip Somodevilla/Getty Images)\u003c/figcaption>\u003c/figure>\n\u003cp>But the door that had been opened to same-sex couples slammed shut in November 2008, when voters passed \u003ca href=\"http://voterguide.sos.ca.gov/past/2008/general/title-sum/prop8-title-sum.htm\" target=\"_blank\">Proposition 8\u003c/a>. The measure, a constitutional amendment banning same-sex marriage, passed with 52 percent of the vote.\u003c/p>\n\u003cp>Gay-marriage advocates immediately filed challenges with the California Supreme Court, which agreed to hear the case, and in May 2009, the court upheld Prop. 8, another blow against same-sex marriage.\u003c/p>\n\u003cp>\u003cstrong>PROP. 8 IN THE FEDERAL COURTS\u003c/strong>\u003c/p>\n\u003cp>Taking the cause up the legal chain, gay-marriage advocates then turned to the federal court system. \u003cem>Perry v. Schwarzenegger\u003c/em> (the governor was named the defendant because he was the head of state at the time, although he did not defend the measure) came before U.S. District Court Judge \u003ca href=\"http://blogs.kqed.org/prop8/2010/01/15/who-is-judge-vaughn-walker/\">Vaughn Walker\u003c/a>.\u003c/p>\n\u003cp>[ad fullwidth]\u003c/p>\n\u003cp>Walker \u003ca href=\"http://blogs.kqed.org/prop8/2010/08/04/prop-8-overturned-whats-next/\">overturned\u003c/a> Prop. 8 in August 2010, saying that it violated the federal constitutional guarantees of due process and equal protection under the law, garnering a win for same-sex couples.\u003c!--more-->\u003c/p>\n\u003cp>\"Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license,\" Walker wrote in the \u003ca href=\"http://www.kqed.org/assets/pdf/news/prop8ruling080410.pdf\">ruling\u003c/a>. \"Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples.\"\u003c/p>\n\u003cp>Nonetheless, Walker ruled that same-sex marriages should not resume in California until Prop. 8 supporters had a chance to appeal.\u003c/p>\n\u003cp>\u003cstrong>PROP. 8 BACKERS APPEAL\u003c/strong>\u003c/p>\n\u003cp>The \u003ca href=\"http://blogs.kqed.org/prop8/2010/08/05/prop-8-supporters-file-appeal/\">appeal\u003c/a> got off to a rocky start in September 2010. Schwarzenegger, then-Lt. Gov. Abel Maldonado and then-Attorney General Jerry Brown \u003ca href=\"http://blogs.kqed.org/prop8/2010/09/13/is-abel-willing/\">declined to defend\u003c/a> the same-sex marriage ban in court. Imperial County was the only government entity \u003ca href=\"http://blogs.kqed.org/prop8/2010/08/10/imperial-county-files-to-intervene-in-proposition-8-appeals/\">willing to defend\u003c/a> the Prop. 8, though the court soon ruled it didn't have legal standing to intervene in the case. The California Supreme court, however, \u003ca href=\"http://ww2.kqed.org/news/2011/11/17/california-ruling-on-standing-in-prop-8-case-due-at-10-a-m/\">ruled\u003c/a> that Prop. 8's proponents could defend the measure even though state officials declined to do so.\u003c/p>\n\u003cp>In February 2012, the 9th U.S.Circuit Court of Appeals in San Francisco \u003ca href=\"http://ww2.kqed.org/news/2012/02/07/prop-8-appeals-court-decision/\">upheld\u003c/a> the district court's ruling, \u003ca href=\"http://ww2.kqed.org/news/2012/02/07/read-the-full-prop-8-ruling-and-key-passages/\">calling\u003c/a> Prop. 8 unconstitutional.\u003c/p>\n\u003cp>\u003cstrong>PROP. 8 IN THE U.S. SUPREME COURT\u003c/strong>\u003c/p>\n\u003cp>Now, the battle has \u003ca href=\"http://ww2.kqed.org/news/2012/12/07/u-s-supreme-court-announcement-on-proposition-8-californias-gay-marriage-ban/\">reached\u003c/a> the U.S. Supreme Court. The justices \u003ca href=\"http://ww2.kqed.org/news/2013/03/26/audio-transcript-of-supreme-court-proposition-8-oral-arguments/\" target=\"_blank\">heard\u003c/a> oral arguments March 26. President Obama has \u003ca href=\"http://ww2.kqed.org/news/2013/02/28/obama-argues-against-californias-proposition-8-gay-marriage-ban/\">urged\u003c/a> the Supreme Court to overturn the same-sex marriage ban.\u003c/p>\n\u003cp>\u003ca href=\"http://ww2.kqed.org/news/2013/03/26/proposition-8-oral-arguments-explained/\" target=\"_blank\">Oral arguments\u003c/a> touched on a number of issues: whether or not Prop. 8 proponents have standing to bring the case, how to define marriage, if procreation is connected to marriage, and what the Constitution says.\u003c/p>\n\u003cp>As California takes the issue up to the Supreme Court, other states have blazed their own trail. Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Washington, Vermont and Washington, D.C., allow gays and lesbians to marry. On the other side, 31 states have amended their constitutions to ban same-sex marriage.\u003c/p>\n\u003cp>There are \u003ca href=\"http://ww2.kqed.org/news/2013/06/13/supreme-court-may-have-the-final-word-on-prop-8/\" target=\"_blank\">multiple possible outcomes\u003c/a> of the Prop. 8 case -- none of which will likely settle the issue for good. If the Supreme Court overturns Prop. 8, the decision could overturn all state bans on same-sex marriage—provided the high court says there is a fundamental right to marriage. However, the justices could also rule in such a way as to restrict the impact of their ruling to California, allowing other bans on same-sex marriage to stand.\u003c/p>\n\u003cp>If the Supreme Court upholds Prop. 8, the decision would not affect the laws in states that already allow same-sex marriage.\u003c/p>\n\u003cp>The justices could also decide the Prop. 8 proponents lacked standing to bring the case, which would vacate the Ninth Circuit court's decision and uphold Judge Vaughn Walker's ruling that Prop. 8 is unconstitutional. That decision could also leave the issue open to more appeals.\u003c/p>\n\u003cp>\u003cstrong>WHAT ABOUT DOMA?\u003c/strong>\u003c/p>\n\u003cp>The Supreme Court \u003ca href=\"http://ww2.kqed.org/news/2013/03/27/audio-transcript-of-supreme-court-doma-oral-arguments/\" target=\"_blank\">heard\u003c/a> the arguments on the federal Defense of Marriage Act the day after Prop. 8 arguments. DOMA was signed into law by President Bill Clinton in 1996 to define marriage as between a man and woman. DOMA consequently denies legally married same-sex couples the federal benefits that are available to married opposite-sex couples. Clinton has since said he \u003ca href=\"http://www.npr.org/blogs/thetwo-way/2013/03/08/173808091/bill-clinton-defense-of-marriage-act-that-i-signed-is-unconstitutional\">believes\u003c/a> the law is unconstitutional.\u003c/p>\n\u003cp>Two hours of \u003ca href=\"http://ww2.kqed.org/news/2013/03/27/doma-oral-arguments-explained/\" target=\"_blank\">oral arguments\u003c/a> touched largely on what constitutes equal protection under the Constitution, states' rights, and why the President chose not to uphold the law.\u003c/p>\n\u003cp>If the court upholds DOMA, not much will likely change. If the bill is ruled unconstitutional, the federal government will have to recognize the same-sex marriages performed in the states where it is already legal, giving those married couples all the same federal rights and benefits as opposite-sex married couples.\u003c/p>\n\u003cp>\u003cstrong>GAY MARRIAGE IN CALIFORNIA TODAY\u003c/strong>\u003c/p>\n\u003cp>\u003c/p>\n\u003cp>While the cases were being decided, same-sex marriages have not resumed in California, but those performed in 2008 between the overturning of Proposition 22 and the passage of Prop. 8 are considered valid in the state. A \u003ca href=\"http://ww2.kqed.org/news/2013/02/28/california-poll-finds-widespread-support-for-same-sex-marriage/\">Field Poll\u003c/a> released last month found that 61 percent of likely voters now support same-sex marriage. That's the same percentage that voted against it just 13 years ago.\u003c/p>\n\n","blocks":[],"excerpt":"In California's June 2000 primary, 61 percent of the electorate voted \"yes\" on \u003ca href=\"http://primary2000.sos.ca.gov/VoterGuide/Propositions/22text.htm\" target=\"_blank\">Proposition 22\u003c/a>, a measure that amended state law to read, \"Only marriage between a man and a woman is valid or recognized \" in the state. The state Supreme Court overturned the law in 2008 as discriminatory, opening the way for same-sex couples to get legally married in the state. About 18,000 gay and lesbian couples took advantage of the chance to tie the knot.\r\n\r\n\u003ca href=\"http://ww2.kqed.org/news/2013/03/21/prop-8-what-you-need-to-know/supreme-court-decides-whether-of-not-to-review-challenge-of-californias-prop-8-4/\" rel=\"attachment wp-att-91707\">\u003cimg class=\"size-medium wp-image-91707\" src=\"http://ww2.kqed.org/news/files/2013/03/RS1372_samesexmarriage20121130-300x200.jpg\" alt=\"Same-sex marriage proponent Kat McGuckin of Oaklyn, New Jersey, holds a gay marriage pride flag while standing in front of the Supreme Court November 30, 2012 in Washington, D.C. (Chip Somodevilla/Getty Images)\" width=\"300\" height=\"200\" align=\"left\" style=\"padding: 10px 10px 10px 10px\" />\u003c/a> \r\n\r\nBut the door that had been opened to same-sex couples slammed shut in November 2008, when voters passed \u003ca href=\"http://voterguide.sos.ca.gov/past/2008/general/title-sum/prop8-title-sum.htm\" target=\"_blank\">Proposition 8\u003c/a>. The measure, a constitutional amendment banning same-sex marriage, passed with 52 percent of the vote.\r\n\r\nGay-marriage advocates immediately filed challenges with the California Supreme Court, which agreed to hear the case, and in May 2009, the court upheld Prop. 8, another blow against same-sex marriage.","status":"publish","parent":0,"modified":1398733239,"stats":{"hasAudio":false,"hasVideo":false,"hasChartOrMap":false,"iframeSrcs":[],"hasGoogleForm":false,"hasGallery":false,"hasHearkenModule":false,"hasPolis":false,"paragraphCount":26,"wordCount":956},"headData":{"title":"Prop. 8 at the Supreme Court: What You Need to Know | KQED","description":"In California's June 2000 primary, 61 percent of the electorate voted "yes" on Proposition 22, a measure that amended state law to read, "Only marriage between a man and a woman is valid or recognized " in the state. The state Supreme Court overturned the law in 2008 as discriminatory, opening the way for same-sex couples to get legally married in the state. About 18,000 gay and lesbian couples took advantage of the chance to tie the knot.\r\n\r\n \r\n\r\nBut the door that had been opened to same-sex couples slammed shut in November 2008, when voters passed Proposition 8. The measure, a constitutional amendment banning same-sex marriage, passed with 52 percent of the vote.\r\n\r\nGay-marriage advocates immediately filed challenges with the California Supreme Court, which agreed to hear the case, and in May 2009, the court upheld Prop. 8, another blow against same-sex marriage.","ogTitle":"","ogDescription":"","ogImgId":"","twTitle":"","twDescription":"","twImgId":""},"disqusIdentifier":"91703 http://ww2.kqed.org/news/?p=91703","disqusUrl":"https://ww2.kqed.org/news/2013/03/21/prop-8-what-you-need-to-know/","disqusTitle":"Prop. 8 at the Supreme Court: What You Need to Know","path":"/news/91703/prop-8-what-you-need-to-know","audioTrackLength":null,"parsedContent":[{"type":"contentString","content":"\u003cdiv class=\"post-body\">\u003cp>\u003cp>In California's June 2000 primary, 61 percent of the electorate voted \"yes\" on \u003ca href=\"http://primary2000.sos.ca.gov/VoterGuide/Propositions/22text.htm\" target=\"_blank\">Proposition 22\u003c/a>, a measure that amended state law to read, \"Only marriage between a man and a woman is valid or recognized.\" The state Supreme Court overturned the law in 2008 as discriminatory, opening the way for same-sex couples to get legally married in the state. About 18,000 gay and lesbian couples took advantage of the chance to tie the knot.\u003c/p>\n\u003cfigure id=\"attachment_91707\" class=\"wp-caption alignleft\" style=\"max-width: 300px\">\u003ca href=\"http://ww2.kqed.org/news/2013/03/21/prop-8-what-you-need-to-know/supreme-court-decides-whether-of-not-to-review-challenge-of-californias-prop-8-4/\" rel=\"attachment wp-att-91707\">\u003cimg class=\"size-medium wp-image-91707\" src=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2013/03/RS1372_samesexmarriage20121130-300x200.jpg\" alt=\"Same-sex marriage proponent Kat McGuckin of Oaklyn, New Jersey, holds a gay marriage pride flag while standing in front of the Supreme Court November 30, 2012 in Washington, D.C. (Chip Somodevilla/Getty Images)\" width=\"300\" height=\"200\">\u003c/a>\u003cfigcaption class=\"wp-caption-text\">Same-sex marriage proponent Kat McGuckin holds a gay marriage pride flag while standing in front of the U.S. Supreme Court in November 2012. (Chip Somodevilla/Getty Images)\u003c/figcaption>\u003c/figure>\n\u003cp>But the door that had been opened to same-sex couples slammed shut in November 2008, when voters passed \u003ca href=\"http://voterguide.sos.ca.gov/past/2008/general/title-sum/prop8-title-sum.htm\" target=\"_blank\">Proposition 8\u003c/a>. The measure, a constitutional amendment banning same-sex marriage, passed with 52 percent of the vote.\u003c/p>\n\u003cp>Gay-marriage advocates immediately filed challenges with the California Supreme Court, which agreed to hear the case, and in May 2009, the court upheld Prop. 8, another blow against same-sex marriage.\u003c/p>\n\u003cp>\u003cstrong>PROP. 8 IN THE FEDERAL COURTS\u003c/strong>\u003c/p>\n\u003cp>Taking the cause up the legal chain, gay-marriage advocates then turned to the federal court system. \u003cem>Perry v. Schwarzenegger\u003c/em> (the governor was named the defendant because he was the head of state at the time, although he did not defend the measure) came before U.S. District Court Judge \u003ca href=\"http://blogs.kqed.org/prop8/2010/01/15/who-is-judge-vaughn-walker/\">Vaughn Walker\u003c/a>.\u003c/p>\n\u003cp>\u003c/p>\u003c/div>","attributes":{"named":{},"numeric":[]}},{"type":"component","content":"","name":"ad","attributes":{"named":{"label":"fullwidth"},"numeric":["fullwidth"]}},{"type":"contentString","content":"\u003cdiv class=\"post-body\">\u003cp>\u003c/p>\n\u003cp>Walker \u003ca href=\"http://blogs.kqed.org/prop8/2010/08/04/prop-8-overturned-whats-next/\">overturned\u003c/a> Prop. 8 in August 2010, saying that it violated the federal constitutional guarantees of due process and equal protection under the law, garnering a win for same-sex couples.\u003c!--more-->\u003c/p>\n\u003cp>\"Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license,\" Walker wrote in the \u003ca href=\"http://www.kqed.org/assets/pdf/news/prop8ruling080410.pdf\">ruling\u003c/a>. \"Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples.\"\u003c/p>\n\u003cp>Nonetheless, Walker ruled that same-sex marriages should not resume in California until Prop. 8 supporters had a chance to appeal.\u003c/p>\n\u003cp>\u003cstrong>PROP. 8 BACKERS APPEAL\u003c/strong>\u003c/p>\n\u003cp>The \u003ca href=\"http://blogs.kqed.org/prop8/2010/08/05/prop-8-supporters-file-appeal/\">appeal\u003c/a> got off to a rocky start in September 2010. Schwarzenegger, then-Lt. Gov. Abel Maldonado and then-Attorney General Jerry Brown \u003ca href=\"http://blogs.kqed.org/prop8/2010/09/13/is-abel-willing/\">declined to defend\u003c/a> the same-sex marriage ban in court. Imperial County was the only government entity \u003ca href=\"http://blogs.kqed.org/prop8/2010/08/10/imperial-county-files-to-intervene-in-proposition-8-appeals/\">willing to defend\u003c/a> the Prop. 8, though the court soon ruled it didn't have legal standing to intervene in the case. The California Supreme court, however, \u003ca href=\"http://ww2.kqed.org/news/2011/11/17/california-ruling-on-standing-in-prop-8-case-due-at-10-a-m/\">ruled\u003c/a> that Prop. 8's proponents could defend the measure even though state officials declined to do so.\u003c/p>\n\u003cp>In February 2012, the 9th U.S.Circuit Court of Appeals in San Francisco \u003ca href=\"http://ww2.kqed.org/news/2012/02/07/prop-8-appeals-court-decision/\">upheld\u003c/a> the district court's ruling, \u003ca href=\"http://ww2.kqed.org/news/2012/02/07/read-the-full-prop-8-ruling-and-key-passages/\">calling\u003c/a> Prop. 8 unconstitutional.\u003c/p>\n\u003cp>\u003cstrong>PROP. 8 IN THE U.S. SUPREME COURT\u003c/strong>\u003c/p>\n\u003cp>Now, the battle has \u003ca href=\"http://ww2.kqed.org/news/2012/12/07/u-s-supreme-court-announcement-on-proposition-8-californias-gay-marriage-ban/\">reached\u003c/a> the U.S. Supreme Court. The justices \u003ca href=\"http://ww2.kqed.org/news/2013/03/26/audio-transcript-of-supreme-court-proposition-8-oral-arguments/\" target=\"_blank\">heard\u003c/a> oral arguments March 26. President Obama has \u003ca href=\"http://ww2.kqed.org/news/2013/02/28/obama-argues-against-californias-proposition-8-gay-marriage-ban/\">urged\u003c/a> the Supreme Court to overturn the same-sex marriage ban.\u003c/p>\n\u003cp>\u003ca href=\"http://ww2.kqed.org/news/2013/03/26/proposition-8-oral-arguments-explained/\" target=\"_blank\">Oral arguments\u003c/a> touched on a number of issues: whether or not Prop. 8 proponents have standing to bring the case, how to define marriage, if procreation is connected to marriage, and what the Constitution says.\u003c/p>\n\u003cp>As California takes the issue up to the Supreme Court, other states have blazed their own trail. Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Washington, Vermont and Washington, D.C., allow gays and lesbians to marry. On the other side, 31 states have amended their constitutions to ban same-sex marriage.\u003c/p>\n\u003cp>There are \u003ca href=\"http://ww2.kqed.org/news/2013/06/13/supreme-court-may-have-the-final-word-on-prop-8/\" target=\"_blank\">multiple possible outcomes\u003c/a> of the Prop. 8 case -- none of which will likely settle the issue for good. If the Supreme Court overturns Prop. 8, the decision could overturn all state bans on same-sex marriage—provided the high court says there is a fundamental right to marriage. However, the justices could also rule in such a way as to restrict the impact of their ruling to California, allowing other bans on same-sex marriage to stand.\u003c/p>\n\u003cp>If the Supreme Court upholds Prop. 8, the decision would not affect the laws in states that already allow same-sex marriage.\u003c/p>\n\u003cp>The justices could also decide the Prop. 8 proponents lacked standing to bring the case, which would vacate the Ninth Circuit court's decision and uphold Judge Vaughn Walker's ruling that Prop. 8 is unconstitutional. That decision could also leave the issue open to more appeals.\u003c/p>\n\u003cp>\u003cstrong>WHAT ABOUT DOMA?\u003c/strong>\u003c/p>\n\u003cp>The Supreme Court \u003ca href=\"http://ww2.kqed.org/news/2013/03/27/audio-transcript-of-supreme-court-doma-oral-arguments/\" target=\"_blank\">heard\u003c/a> the arguments on the federal Defense of Marriage Act the day after Prop. 8 arguments. DOMA was signed into law by President Bill Clinton in 1996 to define marriage as between a man and woman. DOMA consequently denies legally married same-sex couples the federal benefits that are available to married opposite-sex couples. Clinton has since said he \u003ca href=\"http://www.npr.org/blogs/thetwo-way/2013/03/08/173808091/bill-clinton-defense-of-marriage-act-that-i-signed-is-unconstitutional\">believes\u003c/a> the law is unconstitutional.\u003c/p>\n\u003cp>Two hours of \u003ca href=\"http://ww2.kqed.org/news/2013/03/27/doma-oral-arguments-explained/\" target=\"_blank\">oral arguments\u003c/a> touched largely on what constitutes equal protection under the Constitution, states' rights, and why the President chose not to uphold the law.\u003c/p>\n\u003cp>If the court upholds DOMA, not much will likely change. If the bill is ruled unconstitutional, the federal government will have to recognize the same-sex marriages performed in the states where it is already legal, giving those married couples all the same federal rights and benefits as opposite-sex married couples.\u003c/p>\n\u003cp>\u003cstrong>GAY MARRIAGE IN CALIFORNIA TODAY\u003c/strong>\u003c/p>\n\u003cp>\u003c/p>\n\u003cp>While the cases were being decided, same-sex marriages have not resumed in California, but those performed in 2008 between the overturning of Proposition 22 and the passage of Prop. 8 are considered valid in the state. A \u003ca href=\"http://ww2.kqed.org/news/2013/02/28/california-poll-finds-widespread-support-for-same-sex-marriage/\">Field Poll\u003c/a> released last month found that 61 percent of likely voters now support same-sex marriage. That's the same percentage that voted against it just 13 years ago.\u003c/p>\n\n\u003c/div>\u003c/p>","attributes":{"named":{},"numeric":[]}}],"link":"/news/91703/prop-8-what-you-need-to-know","authors":["1430"],"programs":["news_6944"],"categories":["news_6188"],"tags":["news_4863","news_335","news_548","news_893","news_3672","news_2626","news_82","news_323","news_126","news_322","news_1172","news_1244"],"label":"news_6944"},"news_55537":{"type":"posts","id":"news_55537","meta":{"index":"posts_1591205157","site":"news","id":"55537","score":null,"sort":[1363838414000]},"guestAuthors":[],"slug":"timeline-the-long-battle-over-same-sex-marriage-in-california","title":"Timeline: The Long Battle Over Same-Sex Marriage in California","publishDate":1363838414,"format":"aside","headTitle":"News Fix | KQED News","labelTerm":{"term":6944,"site":"news"},"content":"\u003cp>When the Supreme Court arguments on the constitutionality of Proposition 8, it will mark one more step in a long legal battle to determine the ultimate disposition of the same-sex marriage ban.\u003c/p>\n\u003cp>And while the legal battle over Proposition 8 has been long and winding enough, the battle over same-sex marriage in California actually goes back even further, as you'll see in this \u003cstrong>\u003ca href=\"http://www.tiki-toki.com/timeline/entry/94206/A-History-of-Same-Sex-Marriage-in-California/\" target=\"_blank\">timeline\u003c/a>\u003c/strong>.\u003c/p>\n\u003cp>[ad fullwidth]\u003c/p>\u003cp>\u003c/p>\n","blocks":[],"excerpt":"When the Supreme Court arguments on the constitutionality of Proposition 8, it will mark one more step in a long legal battle to determine the ultimate disposition of the same-sex marriage ban.\r\n\r\nAnd while the legal battle over Proposition 8 has been long and winding enough, the battle over same-sex marriage in California actually goes back even further, as you'll see in this \u003cstrong>\u003ca href=\"http://www.tiki-toki.com/timeline/entry/94206/A-History-of-Same-Sex-Marriage-in-California/\" target=\"_blank\">timeline\u003c/a>\u003c/strong>.\r\n\r\n\u003ciframe frameborder=\"0\" style=\"border-width:0\" width=\"620\" height=\"480\" src=\"http://www.tiki-toki.com/timeline/embed/94206/6323748030/\">\u003c/iframe>","status":"publish","parent":0,"modified":1540258676,"stats":{"hasAudio":false,"hasVideo":false,"hasChartOrMap":false,"iframeSrcs":[],"hasGoogleForm":false,"hasGallery":false,"hasHearkenModule":false,"hasPolis":false,"paragraphCount":4,"wordCount":69},"headData":{"title":"Timeline: The Long Battle Over Same-Sex Marriage in California | KQED","description":"When the Supreme Court arguments on the constitutionality of Proposition 8, it will mark one more step in a long legal battle to determine the ultimate disposition of the same-sex marriage ban.\r\n\r\nAnd while the legal battle over Proposition 8 has been long and winding enough, the battle over same-sex marriage in California actually goes back even further, as you'll see in this timeline.\r\n\r\n","ogTitle":"","ogDescription":"","ogImgId":"","twTitle":"","twDescription":"","twImgId":""},"disqusIdentifier":"55537 http://ww2.kqed.org/news/?p=55537","disqusUrl":"https://ww2.kqed.org/news/2013/03/20/timeline-the-long-battle-over-same-sex-marriage-in-california/","disqusTitle":"Timeline: The Long Battle Over Same-Sex Marriage in California","path":"/news/55537/timeline-the-long-battle-over-same-sex-marriage-in-california","audioTrackLength":null,"parsedContent":[{"type":"contentString","content":"\u003cdiv class=\"post-body\">\u003cp>\u003cp>When the Supreme Court arguments on the constitutionality of Proposition 8, it will mark one more step in a long legal battle to determine the ultimate disposition of the same-sex marriage ban.\u003c/p>\n\u003cp>And while the legal battle over Proposition 8 has been long and winding enough, the battle over same-sex marriage in California actually goes back even further, as you'll see in this \u003cstrong>\u003ca href=\"http://www.tiki-toki.com/timeline/entry/94206/A-History-of-Same-Sex-Marriage-in-California/\" target=\"_blank\">timeline\u003c/a>\u003c/strong>.\u003c/p>\n\u003cp>\u003c/p>\u003c/div>","attributes":{"named":{},"numeric":[]}},{"type":"component","content":"","name":"ad","attributes":{"named":{"label":"fullwidth"},"numeric":["fullwidth"]}},{"type":"contentString","content":"\u003cdiv class=\"post-body\">\u003cp>\u003c/p>\u003cp>\u003c/p>\n\u003c/div>\u003c/p>","attributes":{"named":{},"numeric":[]}}],"link":"/news/55537/timeline-the-long-battle-over-same-sex-marriage-in-california","authors":["199"],"programs":["news_6944"],"categories":["news_6188"],"tags":["news_82","news_323","news_126","news_322"],"label":"news_6944"},"news_67415":{"type":"posts","id":"news_67415","meta":{"index":"posts_1591205157","site":"news","id":"67415","score":null,"sort":[1339023773000]},"guestAuthors":[],"slug":"analysis-will-the-supreme-court-hear-the-proposition-8-case","title":"Analysis: Will the Supreme Court Hear the Proposition 8 Case? ","publishDate":1339023773,"format":"aside","headTitle":"News Fix | KQED News","labelTerm":{"term":6944,"site":"news"},"content":"\u003cp>Yesterday the Ninth Circuit Court of Appeals declined to grant a rehearing of the Proposition 8 case. In February, a three-judge panel of the court voted 2-1 to uphold a lower court's ruling that the same-sex marriage ban is unconstitutional, and Proposition 8 proponents, on the losing side of that decision, had wanted a larger group of Ninth Circuit judges, called an \"en banc\" panel, to rehear the case.\u003c/p>\n\u003cp>After this latest setback, Prop 8 supporters, who have now lost at two levels of the federal judiciary, said they would \"absolutely\" ask the Supreme Court to review the case.\u003c/p>\n\u003cp>When the Ninth Circuit issued its ruling on the case in February, UC Davis law professor Vik Amar told KQED's Scott Shafer that he thought the opinion was written as narrowly as possible in order to ward off the Supreme Court from taking -- and perhaps overturning -- the case.\u003c/p>\n\u003cp>Yesterday, after the Ninth Circuit announced it would not take up the case again, KQED's Rachael Myrow checked in with Professor Amar to get his reading of the tea leaves in terms of whether the Supreme Court will take up the matter of Proposition 8. Edited transcript of that interview:\u003c/p>\n\u003cp>\u003cstrong>RACHAEL MYROW\u003c/strong>:Recap the narrow ruling that the Ninth Circuit issued in February.\u003c/p>\n\u003cp>[ad fullwidth]\u003c/p>\n\u003cp>\u003cstrong>VIK AMAR\u003c/strong>: They tried to decide the case on very California-specific grounds, so the Supreme Court wouldn't feel it had to intervene and take review. If the Ninth Circuit had held that not only had Prop 8 violated the federal constitution, but that every state's ban on same-sex marriage in the western U.S. also violated the federal constitution, than I think the U.S. Supreme Court would have had no choice but to take review.\u003c/p>\n\u003cp>There's still a good chance the Supreme Court will step in, but at least by making the ruling so California-specific they offer the Supreme Court an excuse not to step in if it wants to wait.\u003c/p>\n\u003cp>\u003cstrong>RACHAEL MYROW\u003c/strong>: A lot of people are talking as if it's a given that the Supreme Court will take up the case. But might it leave it alone?\u003c/p>\n\u003cp>\u003cstrong>VIK AMAR\u003c/strong>: It might. But the California-specific reasoning that Judge Reinhardt employed is not convincing to a lot of people. So there's a good chance the Supreme Court will still want to take the case.\u003c/p>\n\u003cp>But complicating things more now is the decision by the First Circuit Court of Appeals in the Defense of Marriage case last week. The DOMA case raises narrower questions than the Prop 8 case does. So they may want to look at the DOMA issues and wait a year or more before they take on the more momentous question of whether states have to recognize same-sex marriage, if they want to take up the question of gay marriage a little more incrementally.\u003c/p>\n\u003cp>Because in the First Circuit's DOMA ruling, the question wasn't whether states have to recognize same sex marriage, it was if a state recognizes same sex marriage, should the federal government have to abide by that and allow that couple to be considered married for federal purposes as well? The court may want to look at that narrower issue before it confronts the bigger issue presented by Prop 8 and other bans on same-sex marriage like it.\u003c/p>\n\u003cp>Sometimes the Supreme Court will sit on a request for review for awhile until it decides another case that may be relevant. So if the Supreme Court decides it wants to take the DOMA case first, it could grant review in that case and let the Prop 8 case sit.\u003c/p>\n\u003cp>One more thing that's important – we've been focusing on the merits of the Prop 8 case, whether the California constitutional ban on same-sex marriage violates the 14th Amendment. But there's still that looming question of whether the defenders of Prop 8 had standing to defend the law in the first place. The Supreme Court could dispose of the Prop 8 case if it wanted to on standing grounds without ever ruling on the merits. \u003c!--more-->\u003c/p>\n\u003cp>\u003cstrong>RACHAEL MYROW\u003c/strong>: How likely is that?\u003c/p>\n\u003cp>\u003cstrong>VIK AMAR\u003c/strong>: I think it's not unlikely. In 1996 the Supreme Court unanimously wrote an opinion that slapped the Ninth Circuit down for recognizing initiative-sponsored standing in Arizona. This case is arguably different than the Arizona case, but there's a lot of skepticism on the part of U.S. Supreme Court justices about whether unelected individuals should easily be able to step into the shoes of voters and defend enactments in federal court, especially when the people who passed Prop 8, the voters, may not have really known who the sponsors of Prop 8 were who were going to be their legal representatives.\u003c/p>\n\u003cp>\u003c/p>\n\u003cp>I think the standing question is a really complex one and I don't really think the Ninth circuit and the California Supreme Court did it justice in deciding that the sponsors really did have standing.\u003c/p>\n\n","blocks":[],"excerpt":null,"status":"publish","parent":0,"modified":1339024207,"stats":{"hasAudio":false,"hasVideo":false,"hasChartOrMap":false,"iframeSrcs":[],"hasGoogleForm":false,"hasGallery":false,"hasHearkenModule":false,"hasPolis":false,"paragraphCount":18,"wordCount":842},"headData":{"title":"Analysis: Will the Supreme Court Hear the Proposition 8 Case? | KQED","description":"Yesterday the Ninth Circuit Court of Appeals declined to grant a rehearing of the Proposition 8 case. In February, a three-judge panel of the court voted 2-1 to uphold a lower court's ruling that the same-sex marriage ban is unconstitutional, and Proposition 8 proponents, on the losing side of that decision, had wanted a larger","ogTitle":"","ogDescription":"","ogImgId":"","twTitle":"","twDescription":"","twImgId":""},"disqusIdentifier":"67415 http://ww2.kqed.org/news/?p=67415","disqusUrl":"https://ww2.kqed.org/news/2012/06/06/analysis-will-the-supreme-court-hear-the-proposition-8-case/","disqusTitle":"Analysis: Will the Supreme Court Hear the Proposition 8 Case? ","path":"/news/67415/analysis-will-the-supreme-court-hear-the-proposition-8-case","audioTrackLength":null,"parsedContent":[{"type":"contentString","content":"\u003cdiv class=\"post-body\">\u003cp>\u003cp>Yesterday the Ninth Circuit Court of Appeals declined to grant a rehearing of the Proposition 8 case. In February, a three-judge panel of the court voted 2-1 to uphold a lower court's ruling that the same-sex marriage ban is unconstitutional, and Proposition 8 proponents, on the losing side of that decision, had wanted a larger group of Ninth Circuit judges, called an \"en banc\" panel, to rehear the case.\u003c/p>\n\u003cp>After this latest setback, Prop 8 supporters, who have now lost at two levels of the federal judiciary, said they would \"absolutely\" ask the Supreme Court to review the case.\u003c/p>\n\u003cp>When the Ninth Circuit issued its ruling on the case in February, UC Davis law professor Vik Amar told KQED's Scott Shafer that he thought the opinion was written as narrowly as possible in order to ward off the Supreme Court from taking -- and perhaps overturning -- the case.\u003c/p>\n\u003cp>Yesterday, after the Ninth Circuit announced it would not take up the case again, KQED's Rachael Myrow checked in with Professor Amar to get his reading of the tea leaves in terms of whether the Supreme Court will take up the matter of Proposition 8. Edited transcript of that interview:\u003c/p>\n\u003cp>\u003cstrong>RACHAEL MYROW\u003c/strong>:Recap the narrow ruling that the Ninth Circuit issued in February.\u003c/p>\n\u003cp>\u003c/p>\u003c/div>","attributes":{"named":{},"numeric":[]}},{"type":"component","content":"","name":"ad","attributes":{"named":{"label":"fullwidth"},"numeric":["fullwidth"]}},{"type":"contentString","content":"\u003cdiv class=\"post-body\">\u003cp>\u003c/p>\n\u003cp>\u003cstrong>VIK AMAR\u003c/strong>: They tried to decide the case on very California-specific grounds, so the Supreme Court wouldn't feel it had to intervene and take review. If the Ninth Circuit had held that not only had Prop 8 violated the federal constitution, but that every state's ban on same-sex marriage in the western U.S. also violated the federal constitution, than I think the U.S. Supreme Court would have had no choice but to take review.\u003c/p>\n\u003cp>There's still a good chance the Supreme Court will step in, but at least by making the ruling so California-specific they offer the Supreme Court an excuse not to step in if it wants to wait.\u003c/p>\n\u003cp>\u003cstrong>RACHAEL MYROW\u003c/strong>: A lot of people are talking as if it's a given that the Supreme Court will take up the case. But might it leave it alone?\u003c/p>\n\u003cp>\u003cstrong>VIK AMAR\u003c/strong>: It might. But the California-specific reasoning that Judge Reinhardt employed is not convincing to a lot of people. So there's a good chance the Supreme Court will still want to take the case.\u003c/p>\n\u003cp>But complicating things more now is the decision by the First Circuit Court of Appeals in the Defense of Marriage case last week. The DOMA case raises narrower questions than the Prop 8 case does. So they may want to look at the DOMA issues and wait a year or more before they take on the more momentous question of whether states have to recognize same-sex marriage, if they want to take up the question of gay marriage a little more incrementally.\u003c/p>\n\u003cp>Because in the First Circuit's DOMA ruling, the question wasn't whether states have to recognize same sex marriage, it was if a state recognizes same sex marriage, should the federal government have to abide by that and allow that couple to be considered married for federal purposes as well? The court may want to look at that narrower issue before it confronts the bigger issue presented by Prop 8 and other bans on same-sex marriage like it.\u003c/p>\n\u003cp>Sometimes the Supreme Court will sit on a request for review for awhile until it decides another case that may be relevant. So if the Supreme Court decides it wants to take the DOMA case first, it could grant review in that case and let the Prop 8 case sit.\u003c/p>\n\u003cp>One more thing that's important – we've been focusing on the merits of the Prop 8 case, whether the California constitutional ban on same-sex marriage violates the 14th Amendment. But there's still that looming question of whether the defenders of Prop 8 had standing to defend the law in the first place. The Supreme Court could dispose of the Prop 8 case if it wanted to on standing grounds without ever ruling on the merits. \u003c!--more-->\u003c/p>\n\u003cp>\u003cstrong>RACHAEL MYROW\u003c/strong>: How likely is that?\u003c/p>\n\u003cp>\u003cstrong>VIK AMAR\u003c/strong>: I think it's not unlikely. In 1996 the Supreme Court unanimously wrote an opinion that slapped the Ninth Circuit down for recognizing initiative-sponsored standing in Arizona. This case is arguably different than the Arizona case, but there's a lot of skepticism on the part of U.S. Supreme Court justices about whether unelected individuals should easily be able to step into the shoes of voters and defend enactments in federal court, especially when the people who passed Prop 8, the voters, may not have really known who the sponsors of Prop 8 were who were going to be their legal representatives.\u003c/p>\n\u003cp>\u003c/p>\n\u003cp>I think the standing question is a really complex one and I don't really think the Ninth circuit and the California Supreme Court did it justice in deciding that the sponsors really did have standing.\u003c/p>\n\n\u003c/div>\u003c/p>","attributes":{"named":{},"numeric":[]}}],"link":"/news/67415/analysis-will-the-supreme-court-hear-the-proposition-8-case","authors":["80"],"programs":["news_6944"],"categories":["news_6188"],"tags":["news_82","news_323","news_126","news_322","news_932"],"label":"news_6944"},"news_67195":{"type":"posts","id":"news_67195","meta":{"index":"posts_1591205157","site":"news","id":"67195","score":null,"sort":[1338923297000]},"guestAuthors":[],"slug":"prop-8-en-banc-ruling","title":"Request for En Banc Rehearing of Prop 8 Case Denied by 9th Circuit","publishDate":1338923297,"format":"aside","headTitle":"News Fix | KQED News","labelTerm":{"term":6944,"site":"news"},"content":"\u003cfigure id=\"attachment_55522\" class=\"wp-caption alignright\" style=\"max-width: 220px\">\u003ca href=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2012/02/Prop8plaintiffsSM11.jpg\">\u003cimg class=\"size-medium wp-image-55522\" title=\"Prop8plaintiffsSM1\" src=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2012/02/Prop8plaintiffsSM11-300x225.jpg\" alt=\"\" width=\"220\" height=\"166\">\u003c/a>\u003cfigcaption class=\"wp-caption-text\">Couples challenging Prop 8 pose before an Appeals Court hearing in Dec, 2010. (Scott Shafer/KQED)\u003c/figcaption>\u003c/figure>\n\u003cp>The petition by Prop 8 proponents for a rehearing of the case by a larger panel of the Ninth Circuit Court of Appeals has been denied.\u003c/p>\n\u003cul>\n\u003cli>\u003ca href=\"http://www.ca9.uscourts.gov/datastore/general/2012/06/05/1016696ebofinal.pdf\">\u003cstrong>Read the ruling here\u003c/strong>\u003c/a>\u003c/li>\n\u003c/ul>\n\u003cp>Prop 8 proponents now have 90 days to file an appeal to the U.S. Supreme Court, during which time same-sex marriage in California will remain prohibited, as it will if and when the Supreme Court takes the case. Backers of the ban said today they \u003ca href=\"http://www.kqed.org/news/story/2012/06/05/96369/prop_8_backers_say_theyll_take_case_to_supreme_court?category=bay+area\">will indeed ask the high court to review the decision\u003c/a>. From AP:\u003c/p>\n\u003cblockquote>\u003cp>Alliance Defense Fund lawyer Brian Raum said Proposition 8 backers ``absolutely'' would take the case to the high court now that it has run its course at the 9th U.S. Circuit Court of Appeals.\u003c/p>\n\u003cp>Raum said he expected to get a ruling from the Supreme Court sometime in the fall on whether it would take the case. He did not know if the Proposition 8 defense team would take the entire 90 days they have to petition the Supreme Court.\u003c/p>\u003c/blockquote>\n\u003cp>If the high court declines to hear the case, or if it upholds the Ninth Circuit's ruling, then same-sex marriage will be legal in California. If the Supreme Court takes the case and reverses the Ninth Circuit decision, then it will remain illegal. \u003c/p>\n\u003cp>Theodore Olson, one of the lead attorneys for the plaintiffs challenging Prop 8, speculated on a conference call today that he expects the Supreme Court would announce its decision on whether it will hear the case in October. If the court takes up the matter, Olson said, he thinks arguments would occur some time in the spring of 2013, with a decision by June, 2013. \u003c/p>\n\u003caside class=\"pullquote alignleft\">\u003ca href=\"http://ww2.kqed.org/news/2012/06/05/prop-8-en-banc-ruling/#react\">\u003cstrong>Reaction from around the web and live chat\u003c/strong>\u003c/a>\u003c/aside>\n\u003cp>As for today's ruling, proponents of Prop 8 asked the 9th Circuit for the en banc review in February, after a \u003ca href=\"http://ww2.kqed.org/news/2012/02/07/read-the-full-prop-8-ruling-and-key-passages/\">decision by a three-judge panel\u003c/a> upheld Judge Vaughn Walker's 2010 decision striking down the law as unconstitutional.\u003c/p>\n\u003cp>[ad fullwidth]\u003c/p>\n\u003cp>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.\" \u003c!--more-->\u003c/p>\n\u003cp>\u003cstrong>Update 10:30 a.m.\u003c/strong> KQED's Scott Shafer today talked to Vik Amar of the UC Davis School of Law, who said there were actually two requests before the court:\u003c/p>\n\u003cul>\n\u003cli>A request to the original three-judge panel for a rehearing. That request was denied 2 to 1, with Judge Smith, who wrote the original dissent to the decision, in the minority.\u003c/li>\n\u003cli>Having lost that vote, a request for an en banc hearing was then put to the full court, and at least three judges voted to rehear the case. The opinion, written by Judge O’Scannlain, was publicly joined by Judges Byee and Bea. Other judges may have also voted for a rehearing but declined to make their names public.\u003c/li>\n\u003c/ul>\n\u003cp>\u003cstrong>Update 10:40 a.m.\u003c/strong> In February, Hastings law professor Rory Little told Scott Shafer he thought Prop 8 supporters were pretty disappointed with Judge Smith's dissent to the original decision, \"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.'\u003c/p>\n\u003cp>Little continued: \"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.\"\u003c/p>\n\u003cp>Well, Judge O'Scannlain did indeed write a dissent...\u003c/p>\n\u003cblockquote>\u003cp>A few weeks ago, subsequent to oral argument in this case, the President of the United States ignited a media firestorm by announcing that he supports same-sex marriage as a policy matter. Drawing less attention, however, were his comments that the Constitution left this matter to the States and that “one of the things that [he]’d like to see is–that [the] conversation continue in a respectful way.”\u003c/p>\n\u003cp>Today our court has silenced any such respectful conversation. Based on a two-judge majority’s gross misapplication of \u003ca href=\"http://www.oyez.org/cases/1990-1999/1995/1995_94_1039\">Romer v. Evans\u003c/a>, we have now declared that animus must have been the only conceivable motivation for a sovereign State to have remained committed to a definition of marriage that has existed for millennia. Even worse, we have overruled the will of seven million California Proposition 8 voters based on a reading of Romer that would be unrecognizable to the Justices who joined it, to those who dissented from it, and to the judges from sister circuits who have since interpreted it. We should not have so roundly trumped California’s democratic process without at least discussing this unparalleled decision as an en banc court.\u003c/p>\u003c/blockquote>\n\u003cp>And the retort from Judges Reinhardt and Hawkins, who made up the majority in February's 2-1 decision:\u003c/p>\n\u003cblockquote>\u003cp>We are puzzled by our dissenting colleagues’ unusual reliance on the President’s views regarding the Constitution, especially as the President did not discuss the narrow issue that we decided in our opinion. We held only that under the particular circumstances relating to California’s Proposition 8, that measure was invalid. In line with the rules governing judicial resolution of constitutional issues, we did not resolve the fundamental question that both sides asked us to: whether the Constitution prohibits the states from banning same-sex marriage. That question may be decided in the near future, but if so, it should be in some other case, at some other time.\u003c/p>\u003c/blockquote>\n\u003cp>The reference here to the \"the particular circumstances relating to California’s Proposition 8\" and to the lack of resolution to \"the fundamental question [of] whether the Constitution prohibits the states from banning same-sex marriage\" may also be noteworthy.\u003c/p>\n\u003cp>After the Ninth Circuit panel's decision against Prop 8 in February, UC Davis' Vik Amar told Scott Shafer that \u003ca href=\"http://ww2.kqed.org/news/2012/02/07/prop-8-ruling-legal-analysis-decision-was-made-with-eye-toward-supreme-court/\">Reinhardt and Hawkins may have tailored their decision in the narrowest way possible\u003c/a>, making it applicable only to California, so as to give the ruling the best possible chance of \u003cem>not\u003c/em> being taken up by the U.S. Supreme Court.\u003c/p>\n\u003cp>But Amar also said: \"There was no way the Ninth circuit was going to rule for the plaintiffs and not create a significant risk that the Supreme Court would step in. The question wasn't whether the Supreme Court had its eye on this case, the question was how do you minimize that, and I think they tried to do that by keeping the reasoning specific to California.\"\u003c/p>\n\u003cp>Professor Rory Little of Hastings agreed with that today, in an interview with KQED's Rachael Myrow. \"I think it's a little naieve to believe that the court will see this as limited to just California. Certainly the Ninth Circuit's ruling only relates to California, but its analysis is much broader than just California. And of course the Ninth Circuit governs the entire western United states, so its analysis would be precedent for the entire [region]. \u003c/p>\n\u003cp>\"I think the Supreme Court is likely to think this issue is ripe, this is ready for a national decision. One way or the other, there are enough states that have gone in different directions, there's enough controversy about it, [so] let's try to put the issue to rest one way or the other.\"\u003c/p>\n\u003cp>\u003ca name=\"react\">\u003c/a>\u003cbr>\nReaction and coverage from around the web below...\u003c/p>\n\u003cp>\u003ciframe style=\"border: 1px solid #000000\" src=\"http://embed.scribblelive.com/Embed/v5.aspx?Id=48944&ThemeId=5349\" frameborder=\"0\" width=\"400\" height=\"300\">\u003c/iframe>\u003c/p>\n\u003cp>\u003ca href=\"http://www.scribd.com/doc/96044529/Ninth-Circuit-Denies-Rehearing-of-Prop-8-Case-Decision\">Read the full decision here\u003c/a>:\u003c/p>\n\u003cp>[ad floatright]\u003c/p>\n\u003cp>\u003ca title=\"View Ninth Circuit Denies Rehearing of Prop. 8 Case - Decision on Scribd\" href=\"http://www.scribd.com/doc/96044529/Ninth-Circuit-Denies-Rehearing-of-Prop-8-Case-Decision\">Ninth Circuit Denies Rehearing of Prop. 8 Case - Decision\u003c/a>\u003ciframe src=\"http://www.scribd.com/embeds/96044529/content?start_page=1&view_mode=list&access_key=key-2f8llfbytss95ikdjxx2\" frameborder=\"0\" scrolling=\"no\" width=\"100%\" height=\"600\">\u003c/iframe>\u003c/p>\n\n","blocks":[],"excerpt":null,"status":"publish","parent":0,"modified":1338927609,"stats":{"hasAudio":false,"hasVideo":false,"hasChartOrMap":false,"iframeSrcs":[],"hasGoogleForm":false,"hasGallery":false,"hasHearkenModule":false,"hasPolis":false,"paragraphCount":27,"wordCount":1340},"headData":{"title":"Request for En Banc Rehearing of Prop 8 Case Denied by 9th Circuit | KQED","description":"The petition by Prop 8 proponents for a rehearing of the case by a larger panel of the Ninth Circuit Court of Appeals has been denied. Read the ruling here Prop 8 proponents now have 90 days to file an appeal to the U.S. Supreme Court, during which time same-sex marriage in California will remain","ogTitle":"","ogDescription":"","ogImgId":"","twTitle":"","twDescription":"","twImgId":""},"disqusIdentifier":"67195 http://ww2.kqed.org/news/?p=67195","disqusUrl":"https://ww2.kqed.org/news/2012/06/05/prop-8-en-banc-ruling/","disqusTitle":"Request for En Banc Rehearing of Prop 8 Case Denied by 9th Circuit","path":"/news/67195/prop-8-en-banc-ruling","audioTrackLength":null,"parsedContent":[{"type":"contentString","content":"\u003cdiv class=\"post-body\">\u003cp>\u003cfigure id=\"attachment_55522\" class=\"wp-caption alignright\" style=\"max-width: 220px\">\u003ca href=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2012/02/Prop8plaintiffsSM11.jpg\">\u003cimg class=\"size-medium wp-image-55522\" title=\"Prop8plaintiffsSM1\" src=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2012/02/Prop8plaintiffsSM11-300x225.jpg\" alt=\"\" width=\"220\" height=\"166\">\u003c/a>\u003cfigcaption class=\"wp-caption-text\">Couples challenging Prop 8 pose before an Appeals Court hearing in Dec, 2010. (Scott Shafer/KQED)\u003c/figcaption>\u003c/figure>\n\u003cp>The petition by Prop 8 proponents for a rehearing of the case by a larger panel of the Ninth Circuit Court of Appeals has been denied.\u003c/p>\n\u003cul>\n\u003cli>\u003ca href=\"http://www.ca9.uscourts.gov/datastore/general/2012/06/05/1016696ebofinal.pdf\">\u003cstrong>Read the ruling here\u003c/strong>\u003c/a>\u003c/li>\n\u003c/ul>\n\u003cp>Prop 8 proponents now have 90 days to file an appeal to the U.S. Supreme Court, during which time same-sex marriage in California will remain prohibited, as it will if and when the Supreme Court takes the case. Backers of the ban said today they \u003ca href=\"http://www.kqed.org/news/story/2012/06/05/96369/prop_8_backers_say_theyll_take_case_to_supreme_court?category=bay+area\">will indeed ask the high court to review the decision\u003c/a>. From AP:\u003c/p>\n\u003cblockquote>\u003cp>Alliance Defense Fund lawyer Brian Raum said Proposition 8 backers ``absolutely'' would take the case to the high court now that it has run its course at the 9th U.S. Circuit Court of Appeals.\u003c/p>\n\u003cp>Raum said he expected to get a ruling from the Supreme Court sometime in the fall on whether it would take the case. He did not know if the Proposition 8 defense team would take the entire 90 days they have to petition the Supreme Court.\u003c/p>\u003c/blockquote>\n\u003cp>If the high court declines to hear the case, or if it upholds the Ninth Circuit's ruling, then same-sex marriage will be legal in California. If the Supreme Court takes the case and reverses the Ninth Circuit decision, then it will remain illegal. \u003c/p>\n\u003cp>Theodore Olson, one of the lead attorneys for the plaintiffs challenging Prop 8, speculated on a conference call today that he expects the Supreme Court would announce its decision on whether it will hear the case in October. If the court takes up the matter, Olson said, he thinks arguments would occur some time in the spring of 2013, with a decision by June, 2013. \u003c/p>\n\u003caside class=\"pullquote alignleft\">\u003ca href=\"http://ww2.kqed.org/news/2012/06/05/prop-8-en-banc-ruling/#react\">\u003cstrong>Reaction from around the web and live chat\u003c/strong>\u003c/a>\u003c/aside>\n\u003cp>As for today's ruling, proponents of Prop 8 asked the 9th Circuit for the en banc review in February, after a \u003ca href=\"http://ww2.kqed.org/news/2012/02/07/read-the-full-prop-8-ruling-and-key-passages/\">decision by a three-judge panel\u003c/a> upheld Judge Vaughn Walker's 2010 decision striking down the law as unconstitutional.\u003c/p>\n\u003cp>\u003c/p>\u003c/div>","attributes":{"named":{},"numeric":[]}},{"type":"component","content":"","name":"ad","attributes":{"named":{"label":"fullwidth"},"numeric":["fullwidth"]}},{"type":"contentString","content":"\u003cdiv class=\"post-body\">\u003cp>\u003c/p>\n\u003cp>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.\" \u003c!--more-->\u003c/p>\n\u003cp>\u003cstrong>Update 10:30 a.m.\u003c/strong> KQED's Scott Shafer today talked to Vik Amar of the UC Davis School of Law, who said there were actually two requests before the court:\u003c/p>\n\u003cul>\n\u003cli>A request to the original three-judge panel for a rehearing. That request was denied 2 to 1, with Judge Smith, who wrote the original dissent to the decision, in the minority.\u003c/li>\n\u003cli>Having lost that vote, a request for an en banc hearing was then put to the full court, and at least three judges voted to rehear the case. The opinion, written by Judge O’Scannlain, was publicly joined by Judges Byee and Bea. Other judges may have also voted for a rehearing but declined to make their names public.\u003c/li>\n\u003c/ul>\n\u003cp>\u003cstrong>Update 10:40 a.m.\u003c/strong> In February, Hastings law professor Rory Little told Scott Shafer he thought Prop 8 supporters were pretty disappointed with Judge Smith's dissent to the original decision, \"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.'\u003c/p>\n\u003cp>Little continued: \"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.\"\u003c/p>\n\u003cp>Well, Judge O'Scannlain did indeed write a dissent...\u003c/p>\n\u003cblockquote>\u003cp>A few weeks ago, subsequent to oral argument in this case, the President of the United States ignited a media firestorm by announcing that he supports same-sex marriage as a policy matter. Drawing less attention, however, were his comments that the Constitution left this matter to the States and that “one of the things that [he]’d like to see is–that [the] conversation continue in a respectful way.”\u003c/p>\n\u003cp>Today our court has silenced any such respectful conversation. Based on a two-judge majority’s gross misapplication of \u003ca href=\"http://www.oyez.org/cases/1990-1999/1995/1995_94_1039\">Romer v. Evans\u003c/a>, we have now declared that animus must have been the only conceivable motivation for a sovereign State to have remained committed to a definition of marriage that has existed for millennia. Even worse, we have overruled the will of seven million California Proposition 8 voters based on a reading of Romer that would be unrecognizable to the Justices who joined it, to those who dissented from it, and to the judges from sister circuits who have since interpreted it. We should not have so roundly trumped California’s democratic process without at least discussing this unparalleled decision as an en banc court.\u003c/p>\u003c/blockquote>\n\u003cp>And the retort from Judges Reinhardt and Hawkins, who made up the majority in February's 2-1 decision:\u003c/p>\n\u003cblockquote>\u003cp>We are puzzled by our dissenting colleagues’ unusual reliance on the President’s views regarding the Constitution, especially as the President did not discuss the narrow issue that we decided in our opinion. We held only that under the particular circumstances relating to California’s Proposition 8, that measure was invalid. In line with the rules governing judicial resolution of constitutional issues, we did not resolve the fundamental question that both sides asked us to: whether the Constitution prohibits the states from banning same-sex marriage. That question may be decided in the near future, but if so, it should be in some other case, at some other time.\u003c/p>\u003c/blockquote>\n\u003cp>The reference here to the \"the particular circumstances relating to California’s Proposition 8\" and to the lack of resolution to \"the fundamental question [of] whether the Constitution prohibits the states from banning same-sex marriage\" may also be noteworthy.\u003c/p>\n\u003cp>After the Ninth Circuit panel's decision against Prop 8 in February, UC Davis' Vik Amar told Scott Shafer that \u003ca href=\"http://ww2.kqed.org/news/2012/02/07/prop-8-ruling-legal-analysis-decision-was-made-with-eye-toward-supreme-court/\">Reinhardt and Hawkins may have tailored their decision in the narrowest way possible\u003c/a>, making it applicable only to California, so as to give the ruling the best possible chance of \u003cem>not\u003c/em> being taken up by the U.S. Supreme Court.\u003c/p>\n\u003cp>But Amar also said: \"There was no way the Ninth circuit was going to rule for the plaintiffs and not create a significant risk that the Supreme Court would step in. The question wasn't whether the Supreme Court had its eye on this case, the question was how do you minimize that, and I think they tried to do that by keeping the reasoning specific to California.\"\u003c/p>\n\u003cp>Professor Rory Little of Hastings agreed with that today, in an interview with KQED's Rachael Myrow. \"I think it's a little naieve to believe that the court will see this as limited to just California. Certainly the Ninth Circuit's ruling only relates to California, but its analysis is much broader than just California. And of course the Ninth Circuit governs the entire western United states, so its analysis would be precedent for the entire [region]. \u003c/p>\n\u003cp>\"I think the Supreme Court is likely to think this issue is ripe, this is ready for a national decision. One way or the other, there are enough states that have gone in different directions, there's enough controversy about it, [so] let's try to put the issue to rest one way or the other.\"\u003c/p>\n\u003cp>\u003ca name=\"react\">\u003c/a>\u003cbr>\nReaction and coverage from around the web below...\u003c/p>\n\u003cp>\u003ciframe style=\"border: 1px solid #000000\" src=\"http://embed.scribblelive.com/Embed/v5.aspx?Id=48944&ThemeId=5349\" frameborder=\"0\" width=\"400\" height=\"300\">\u003c/iframe>\u003c/p>\n\u003cp>\u003ca href=\"http://www.scribd.com/doc/96044529/Ninth-Circuit-Denies-Rehearing-of-Prop-8-Case-Decision\">Read the full decision here\u003c/a>:\u003c/p>\n\u003cp>\u003c/p>\u003c/div>","attributes":{"named":{},"numeric":[]}},{"type":"component","content":"","name":"ad","attributes":{"named":{"label":"floatright"},"numeric":["floatright"]}},{"type":"contentString","content":"\u003cdiv class=\"post-body\">\u003cp>\u003c/p>\n\u003cp>\u003ca title=\"View Ninth Circuit Denies Rehearing of Prop. 8 Case - Decision on Scribd\" href=\"http://www.scribd.com/doc/96044529/Ninth-Circuit-Denies-Rehearing-of-Prop-8-Case-Decision\">Ninth Circuit Denies Rehearing of Prop. 8 Case - Decision\u003c/a>\u003ciframe src=\"http://www.scribd.com/embeds/96044529/content?start_page=1&view_mode=list&access_key=key-2f8llfbytss95ikdjxx2\" frameborder=\"0\" scrolling=\"no\" width=\"100%\" height=\"600\">\u003c/iframe>\u003c/p>\n\n\u003c/div>\u003c/p>","attributes":{"named":{},"numeric":[]}}],"link":"/news/67195/prop-8-en-banc-ruling","authors":["80"],"programs":["news_6944"],"categories":["news_6188"],"tags":["news_4863","news_82","news_323","news_126","news_322"],"label":"news_6944"},"news_67069":{"type":"posts","id":"news_67069","meta":{"index":"posts_1591205157","site":"news","id":"67069","score":null,"sort":[1338831002000]},"guestAuthors":[],"slug":"prop-8-filing-tomorrow","title":"Prop 8 Filing Tomorrow Could Be 9th Circuit's Decision on Rehearing Case En Banc","publishDate":1338831002,"format":"aside","headTitle":"News Fix | KQED News","labelTerm":{"term":6944,"site":"news"},"content":"\u003cp>\u003cem>Update Tuesday\u003c/em>: \u003ca href=\"http://ww2.kqed.org/news/2012/06/05/prop-8-en-banc-ruling/\">\u003cstrong>The petition for an en banc rehearing has been denied\u003c/strong>\u003c/a>.\u003c/p>\n\u003cp>\u003cem>Monday's post\u003c/em>\u003c/p>\n\u003cp>The Ninth Circuit Court of Appeals just announced there will be a filing tomorrow in Perry v. Brown -- the Proposition 8 case.\u003c/p>\n\u003cfigure id=\"attachment_55632\" class=\"wp-caption alignleft\" style=\"max-width: 285px\">\u003ca href=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2012/02/prop8.jpg\">\u003cimg class=\"size-full wp-image-55632\" title=\"prop8\" src=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2012/02/prop8.jpg\" alt=\"\" width=\"285\" height=\"213\">\u003c/a>\u003cfigcaption class=\"wp-caption-text\">Kids at an anti-Prop 8 rally before a 9th Circuit hearing\u003c/figcaption>\u003c/figure>\n\u003cp>\"The filing will be available from the Ninth Circuit Court of Appeals website, www.ca9.uscourts.gov/opinions,\" the court said.\u003c/p>\n\u003cp>KQED's Scott Shafer said this is almost surely the decision on whether to rehear the case en banc. An en banc panel is made up of 11 judges, chosen at random from the circuit.\u003c/p>\n\u003cp>[ad fullwidth]\u003c/p>\n\u003cp>(\u003cstrong>Update 3:40 p.m.\u003c/strong> The court just sent out a notice that tomorrow's filing will indeed relate to the petition for rehearing en banc.)\u003c/p>\n\u003cp>If the 9th Circuit denies the request, Prop 8 supporters will almost certainly ask the United States Supreme Court to hear the case.\u003c/p>\n\u003cp>Proponents of Prop 8, California's same-sex marriage ban, asked the 9th Circuit for the en banc review in February, after a \u003ca href=\"http://ww2.kqed.org/news/2012/02/07/prop-8-appeals-court-decision/\">ruling by a three-judge panel upheld Judge Vaughn Walker's 2010 decision striking down the law as unconstitutional\u003c/a>. (You can read the \u003ca href=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2012/02/Prop8_EnBanc_Petition.pdf\">petition for the en banc panel here\u003c/a>.)\u003c/p>\n\u003cp>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.\"\u003c/p>\n\u003cp>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. \u003c!--more-->\u003c/p>\n\u003cp>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.\"\u003c/p>\n\u003cp>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.\"\u003c/p>\n\u003cp>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\u003c/p>\n\u003cblockquote>\u003cp>\u003cstrong>Scott Shafer\u003c/strong>\u003c/p>\n\u003cp>Explain the en banc process.\u003c/p>\n\u003cp>\u003cstrong>Hastings Law Professor Rory Little\u003c/strong>\u003c/p>\n\u003cp>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.\u003c/p>\n\u003cp>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.\u003c/p>\n\u003cp>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.\u003c/p>\n\u003cdiv>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.\"\u003c/div>\n\u003cp>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.\u003c/p>\n\u003cp>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.\u003c/p>\n\u003cp>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.\u003c/p>\n\u003cp>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.\u003c/p>\n\u003cp>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.\u003c/p>\n\u003cp>\u003cstrong>Scott Shafer\u003c/strong>\u003c/p>\n\u003cp>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?\u003c/p>\n\u003cp>\u003cstrong>Rory Little\u003c/strong>\u003c/p>\n\u003cp>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?'\u003c/p>\n\u003cp>Secondly, my guess is they believe they would do better if the right judges were put on the en banc panel. If they get \u003ca href=\"http://www.fjc.gov/servlet/nGetInfo?jid=1803&cid=999&ctype=na&instate=na\">O`Scannlain\u003c/a> or \u003ca href=\"http://www.fjc.gov/servlet/nGetInfo?jid=2981&cid=999&ctype=na&instate=na\">Bybee\u003c/a> or \u003ca href=\"http://www.fjc.gov/servlet/nGetInfo?jid=3121&cid=999&ctype=na&instate=na\">Ikuta\u003c/a> my guess is they might get a stronger dissent.\u003c/p>\n\u003cp>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.\"\u003c/p>\n\u003cp>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.\u003c/p>\n\u003cp>\u003cstrong>Scott Shafer\u003c/strong>\u003c/p>\n\u003cp>In terms of timing, do new briefs have to be filed with the en banc panel?\u003c/p>\n\u003cp>\u003cstrong>Rory Little\u003c/strong>\u003c/p>\n\u003cp>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.\u003c/p>\n\u003cp>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.\u003c/p>\u003c/blockquote>\n\u003cp> \u003c/p>\n\u003cp>[ad floatright]\u003c/p>\n\u003cp> \u003c/p>\n\n","blocks":[],"excerpt":null,"status":"publish","parent":0,"modified":1338916201,"stats":{"hasAudio":false,"hasVideo":false,"hasChartOrMap":false,"iframeSrcs":[],"hasGoogleForm":false,"hasGallery":false,"hasHearkenModule":false,"hasPolis":false,"paragraphCount":38,"wordCount":1445},"headData":{"title":"Prop 8 Filing Tomorrow Could Be 9th Circuit's Decision on Rehearing Case En Banc | KQED","description":"Update Tuesday: The petition for an en banc rehearing has been denied. Monday's post The Ninth Circuit Court of Appeals just announced there will be a filing tomorrow in Perry v. Brown -- the Proposition 8 case. "The filing will be available from the Ninth Circuit Court of Appeals website, www.ca9.uscourts.gov/opinions," the court said. KQED's","ogTitle":"","ogDescription":"","ogImgId":"","twTitle":"","twDescription":"","twImgId":""},"disqusIdentifier":"67069 http://ww2.kqed.org/news/?p=67069","disqusUrl":"https://ww2.kqed.org/news/2012/06/04/prop-8-filing-tomorrow/","disqusTitle":"Prop 8 Filing Tomorrow Could Be 9th Circuit's Decision on Rehearing Case En Banc","path":"/news/67069/prop-8-filing-tomorrow","audioTrackLength":null,"parsedContent":[{"type":"contentString","content":"\u003cdiv class=\"post-body\">\u003cp>\u003cp>\u003cem>Update Tuesday\u003c/em>: \u003ca href=\"http://ww2.kqed.org/news/2012/06/05/prop-8-en-banc-ruling/\">\u003cstrong>The petition for an en banc rehearing has been denied\u003c/strong>\u003c/a>.\u003c/p>\n\u003cp>\u003cem>Monday's post\u003c/em>\u003c/p>\n\u003cp>The Ninth Circuit Court of Appeals just announced there will be a filing tomorrow in Perry v. Brown -- the Proposition 8 case.\u003c/p>\n\u003cfigure id=\"attachment_55632\" class=\"wp-caption alignleft\" style=\"max-width: 285px\">\u003ca href=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2012/02/prop8.jpg\">\u003cimg class=\"size-full wp-image-55632\" title=\"prop8\" src=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2012/02/prop8.jpg\" alt=\"\" width=\"285\" height=\"213\">\u003c/a>\u003cfigcaption class=\"wp-caption-text\">Kids at an anti-Prop 8 rally before a 9th Circuit hearing\u003c/figcaption>\u003c/figure>\n\u003cp>\"The filing will be available from the Ninth Circuit Court of Appeals website, www.ca9.uscourts.gov/opinions,\" the court said.\u003c/p>\n\u003cp>KQED's Scott Shafer said this is almost surely the decision on whether to rehear the case en banc. An en banc panel is made up of 11 judges, chosen at random from the circuit.\u003c/p>\n\u003cp>\u003c/p>\u003c/div>","attributes":{"named":{},"numeric":[]}},{"type":"component","content":"","name":"ad","attributes":{"named":{"label":"fullwidth"},"numeric":["fullwidth"]}},{"type":"contentString","content":"\u003cdiv class=\"post-body\">\u003cp>\u003c/p>\n\u003cp>(\u003cstrong>Update 3:40 p.m.\u003c/strong> The court just sent out a notice that tomorrow's filing will indeed relate to the petition for rehearing en banc.)\u003c/p>\n\u003cp>If the 9th Circuit denies the request, Prop 8 supporters will almost certainly ask the United States Supreme Court to hear the case.\u003c/p>\n\u003cp>Proponents of Prop 8, California's same-sex marriage ban, asked the 9th Circuit for the en banc review in February, after a \u003ca href=\"http://ww2.kqed.org/news/2012/02/07/prop-8-appeals-court-decision/\">ruling by a three-judge panel upheld Judge Vaughn Walker's 2010 decision striking down the law as unconstitutional\u003c/a>. (You can read the \u003ca href=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2012/02/Prop8_EnBanc_Petition.pdf\">petition for the en banc panel here\u003c/a>.)\u003c/p>\n\u003cp>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.\"\u003c/p>\n\u003cp>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. \u003c!--more-->\u003c/p>\n\u003cp>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.\"\u003c/p>\n\u003cp>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.\"\u003c/p>\n\u003cp>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\u003c/p>\n\u003cblockquote>\u003cp>\u003cstrong>Scott Shafer\u003c/strong>\u003c/p>\n\u003cp>Explain the en banc process.\u003c/p>\n\u003cp>\u003cstrong>Hastings Law Professor Rory Little\u003c/strong>\u003c/p>\n\u003cp>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.\u003c/p>\n\u003cp>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.\u003c/p>\n\u003cp>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.\u003c/p>\n\u003cdiv>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.\"\u003c/div>\n\u003cp>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.\u003c/p>\n\u003cp>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.\u003c/p>\n\u003cp>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.\u003c/p>\n\u003cp>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.\u003c/p>\n\u003cp>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.\u003c/p>\n\u003cp>\u003cstrong>Scott Shafer\u003c/strong>\u003c/p>\n\u003cp>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?\u003c/p>\n\u003cp>\u003cstrong>Rory Little\u003c/strong>\u003c/p>\n\u003cp>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?'\u003c/p>\n\u003cp>Secondly, my guess is they believe they would do better if the right judges were put on the en banc panel. If they get \u003ca href=\"http://www.fjc.gov/servlet/nGetInfo?jid=1803&cid=999&ctype=na&instate=na\">O`Scannlain\u003c/a> or \u003ca href=\"http://www.fjc.gov/servlet/nGetInfo?jid=2981&cid=999&ctype=na&instate=na\">Bybee\u003c/a> or \u003ca href=\"http://www.fjc.gov/servlet/nGetInfo?jid=3121&cid=999&ctype=na&instate=na\">Ikuta\u003c/a> my guess is they might get a stronger dissent.\u003c/p>\n\u003cp>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.\"\u003c/p>\n\u003cp>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.\u003c/p>\n\u003cp>\u003cstrong>Scott Shafer\u003c/strong>\u003c/p>\n\u003cp>In terms of timing, do new briefs have to be filed with the en banc panel?\u003c/p>\n\u003cp>\u003cstrong>Rory Little\u003c/strong>\u003c/p>\n\u003cp>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.\u003c/p>\n\u003cp>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.\u003c/p>\u003c/blockquote>\n\u003cp> \u003c/p>\n\u003cp>\u003c/p>\u003c/div>","attributes":{"named":{},"numeric":[]}},{"type":"component","content":"","name":"ad","attributes":{"named":{"label":"floatright"},"numeric":["floatright"]}},{"type":"contentString","content":"\u003cdiv class=\"post-body\">\u003cp>\u003c/p>\n\u003cp> \u003c/p>\n\n\u003c/div>\u003c/p>","attributes":{"named":{},"numeric":[]}}],"link":"/news/67069/prop-8-filing-tomorrow","authors":["80"],"programs":["news_6944"],"categories":["news_6188"],"tags":["news_82","news_323","news_126","news_322"],"label":"news_6944"},"news_58332":{"type":"posts","id":"news_58332","meta":{"index":"posts_1591205157","site":"news","id":"58332","score":null,"sort":[1330761597000]},"guestAuthors":[],"slug":"watch-live-saturday-730-p-m-reading-of-prop-8-play-with-george-clooney-brad-pitt","title":"Watch Video Replay of Prop 8 Play With George Clooney, Brad Pitt ","publishDate":1330761597,"format":"aside","headTitle":"News Fix | KQED News","labelTerm":{"term":6944,"site":"news"},"content":"\u003cp>The American Foundation for Equal Rights, which is sponsoring the court challenge to Proposition 8, live-streamed Saturday night a Los Angeles reading of \u003cem>8\u003c/em>, Dustin Lance Black's play about the trial in which Judge Vaughn Walker ruled that California's same-sex marriage ban was unconstitutional. The play is made up largely of \u003ca href=\"http://www.afer.org/our-work/hearing-transcripts/page/2/\">transcripts from the trial\u003c/a>. \u003c/p>\n\u003cp>\u003cstrong>\u003ca href=\"http://www.youtube.com/user/AmericanEqualRights/featured?v=qlUG8F9uVgM\">Click here or on the image below to watch a video replay of the play\u003c/a>\u003c/strong>.\u003c/p>\n\u003cp>\u003ca href=\"http://www.youtube.com/user/AmericanEqualRights/featured?v=qlUG8F9uVgM\">\u003cimg src=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2012/03/8LA-live-2-300x155.jpg\" alt=\"\" title=\"prop 8 play live Pitt Clooney\" width=\"300\" height=\"155\" class=\"aligncenter size-medium wp-image-58365\">\u003c/a>\u003c/p>\n\u003cdiv style=\"text-align: center\">\u003ca href=\"http://www.youtube.com/user/AmericanEqualRights/featured?v=qlUG8F9uVgM\">\u003cstrong>Watch video replay on YouTube\u003c/strong>\u003c/a>\u003c/div>\n\u003cp>\u003c/p>\n\u003cp>The all-star cast included:\u003c/p>\n\u003cp>[ad fullwidth]\u003c/p>\n\u003cp>Brad Pitt as Vaughn Walker\u003cbr>\nGeorge Clooney as plaintiffs' attorney David Boies\u003cbr>\nMartin Sheen as plaintiffs' attorney Theodore Olson\u003cbr>\nChristine Lahti and Jamie Lee Curtis as plaintiffs Kris Perry and Sandy Stier\u003c/p>\n\u003cp>Kevin Bacon, John C Reilly and Jane Lynch also had roles. \u003c/p>\n\u003cp>\u003ca href=\"http://act.afer.org/site/PageServer?pagename=8LALivestreamRSVP\">Full cast here\u003c/a>.\u003c/p>\n\u003cp>\u003c/p>\n\u003cp>Here's director \u003ca href=\"http://www.youtube.com/watch?feature=player_embedded&v=DcGbPqRqS8o\">Rob Reiner talking about the performance\u003c/a>. \"The Prop 8 proponents are still trying to hide what happened at the trial,\" Reiner says, perhaps referring to Prop 8 backers' \u003ca href=\"http://abclocal.go.com/kabc/story?section=news/state&id=8529684\">successful attempt at preventing the release of videotapes from the trial\u003c/a>. \"So we're going to do the exact opposite, we're gonna broadcast it to the entire world.\" \u003c/p>\n\u003cdiv style=\"text-align: center\">\u003ciframe width=\"480\" height=\"274\" src=\"http://www.youtube.com/embed/DcGbPqRqS8o\" frameborder=\"0\">\u003c/iframe>\u003c/div>\n\n","blocks":[],"excerpt":null,"status":"publish","parent":0,"modified":1330882543,"stats":{"hasAudio":false,"hasVideo":true,"hasChartOrMap":false,"iframeSrcs":[],"hasGoogleForm":false,"hasGallery":false,"hasHearkenModule":false,"hasPolis":false,"paragraphCount":11,"wordCount":192},"headData":{"title":"Watch Video Replay of Prop 8 Play With George Clooney, Brad Pitt | KQED","description":"The American Foundation for Equal Rights, which is sponsoring the court challenge to Proposition 8, live-streamed Saturday night a Los Angeles reading of 8, Dustin Lance Black's play about the trial in which Judge Vaughn Walker ruled that California's same-sex marriage ban was unconstitutional. The play is made up largely of transcripts from the trial.","ogTitle":"","ogDescription":"","ogImgId":"","twTitle":"","twDescription":"","twImgId":""},"disqusIdentifier":"58332 http://ww2.kqed.org/news/?p=58332","disqusUrl":"https://ww2.kqed.org/news/2012/03/02/watch-live-saturday-730-p-m-reading-of-prop-8-play-with-george-clooney-brad-pitt/","disqusTitle":"Watch Video Replay of Prop 8 Play With George Clooney, Brad Pitt ","path":"/news/58332/watch-live-saturday-730-p-m-reading-of-prop-8-play-with-george-clooney-brad-pitt","audioTrackLength":null,"parsedContent":[{"type":"contentString","content":"\u003cdiv class=\"post-body\">\u003cp>\u003cp>The American Foundation for Equal Rights, which is sponsoring the court challenge to Proposition 8, live-streamed Saturday night a Los Angeles reading of \u003cem>8\u003c/em>, Dustin Lance Black's play about the trial in which Judge Vaughn Walker ruled that California's same-sex marriage ban was unconstitutional. The play is made up largely of \u003ca href=\"http://www.afer.org/our-work/hearing-transcripts/page/2/\">transcripts from the trial\u003c/a>. \u003c/p>\n\u003cp>\u003cstrong>\u003ca href=\"http://www.youtube.com/user/AmericanEqualRights/featured?v=qlUG8F9uVgM\">Click here or on the image below to watch a video replay of the play\u003c/a>\u003c/strong>.\u003c/p>\n\u003cp>\u003ca href=\"http://www.youtube.com/user/AmericanEqualRights/featured?v=qlUG8F9uVgM\">\u003cimg src=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2012/03/8LA-live-2-300x155.jpg\" alt=\"\" title=\"prop 8 play live Pitt Clooney\" width=\"300\" height=\"155\" class=\"aligncenter size-medium wp-image-58365\">\u003c/a>\u003c/p>\n\u003cdiv style=\"text-align: center\">\u003ca href=\"http://www.youtube.com/user/AmericanEqualRights/featured?v=qlUG8F9uVgM\">\u003cstrong>Watch video replay on YouTube\u003c/strong>\u003c/a>\u003c/div>\n\u003cp>\u003c/p>\n\u003cp>The all-star cast included:\u003c/p>\n\u003cp>\u003c/p>\u003c/div>","attributes":{"named":{},"numeric":[]}},{"type":"component","content":"","name":"ad","attributes":{"named":{"label":"fullwidth"},"numeric":["fullwidth"]}},{"type":"contentString","content":"\u003cdiv class=\"post-body\">\u003cp>\u003c/p>\n\u003cp>Brad Pitt as Vaughn Walker\u003cbr>\nGeorge Clooney as plaintiffs' attorney David Boies\u003cbr>\nMartin Sheen as plaintiffs' attorney Theodore Olson\u003cbr>\nChristine Lahti and Jamie Lee Curtis as plaintiffs Kris Perry and Sandy Stier\u003c/p>\n\u003cp>Kevin Bacon, John C Reilly and Jane Lynch also had roles. \u003c/p>\n\u003cp>\u003ca href=\"http://act.afer.org/site/PageServer?pagename=8LALivestreamRSVP\">Full cast here\u003c/a>.\u003c/p>\n\u003cp>\u003c/p>\n\u003cp>Here's director \u003ca href=\"http://www.youtube.com/watch?feature=player_embedded&v=DcGbPqRqS8o\">Rob Reiner talking about the performance\u003c/a>. \"The Prop 8 proponents are still trying to hide what happened at the trial,\" Reiner says, perhaps referring to Prop 8 backers' \u003ca href=\"http://abclocal.go.com/kabc/story?section=news/state&id=8529684\">successful attempt at preventing the release of videotapes from the trial\u003c/a>. \"So we're going to do the exact opposite, we're gonna broadcast it to the entire world.\" \u003c/p>\n\u003cdiv style=\"text-align: center\">\u003ciframe width=\"480\" height=\"274\" src=\"http://www.youtube.com/embed/DcGbPqRqS8o\" frameborder=\"0\">\u003c/iframe>\u003c/div>\n\n\u003c/div>\u003c/p>","attributes":{"named":{},"numeric":[]}}],"link":"/news/58332/watch-live-saturday-730-p-m-reading-of-prop-8-play-with-george-clooney-brad-pitt","authors":["80"],"programs":["news_6944"],"categories":["news_223","news_6188"],"tags":["news_82","news_323","news_126","news_322"],"label":"news_6944"},"news_57174":{"type":"posts","id":"news_57174","meta":{"index":"posts_1591205157","site":"news","id":"57174","score":null,"sort":[1329866427000]},"guestAuthors":[],"slug":"prop-8-en-banc-hearing-deadline-today","title":"Analysis of Prop 8 \u003ci>En Banc\u003c/i> Filing: Proponents Looking For Stronger Dissent to Take to SCOTUS","publishDate":1329866427,"format":"aside","headTitle":"News Fix | KQED News","labelTerm":{"term":6944,"site":"news"},"content":"\u003cfigure id=\"attachment_57193\" class=\"wp-caption alignright\" style=\"max-width: 180px\">\u003ca href=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2012/02/Prop8Sm.jpg\">\u003cimg class=\"size-full wp-image-57193\" title=\"Prop8Sm\" src=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2012/02/Prop8Sm.jpg\" alt=\"Prop 8\" width=\"180\" height=\"122\">\u003c/a>\u003cfigcaption class=\"wp-caption-text\">Protesters at a 2011 hearing on Prop 8. (Photo: Scott Shafer/KQED)\u003c/figcaption>\u003c/figure>\n\u003cp>Proponents of Proposition 8, California's same-sex marriage ban, have asked the 9th Circuit Court of Appeals for an en banc review of a ruling by a three-judge panel upholding a lower court's striking down the law as unconstitutional. \u003c/p>\n\u003cp>An en banc panel is made up of 11 judges, chosen at random from the circuit.\u003c/p>\n\u003cp>\u003ca href=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2012/02/Prop8_EnBanc_Petition.pdf\">Read the petition for an en banc panel here\u003c/a>.\u003c/p>\n\u003cp>Earlier today, KQED's Scott Shafer talked to Hastings law professor Rory Little about the procedure for and the legal strategy behind asking for an en banc panel. Edited transcript \u003c/p>\n\u003cblockquote>\n\u003cp>\u003cstrong>Scott Shafer\u003c/strong>\u003c/p>\n\u003cp>Explain the en banc process. \u003c/p>\n\u003cp>\u003cstrong>Rory Little\u003c/strong> \u003c/p>\n\u003cp>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. \u003c/p>\n\u003cp>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. \u003c/p>\n\u003cp>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.\u003c/p>\n\u003caside class=\"pullquote alignleft\">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.\"\u003c/aside>\n\u003cp>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. \u003c/p>\n\u003cp>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. \u003c/p>\n\u003cp>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. \u003c/p>\n\u003cp>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. \u003c!--more-->\u003c/p>\n\u003cp>\u003cstrong>Scott Shafer\u003c/strong>\u003c/p>\n\u003cp>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?\u003c/p>\n\u003cp>\u003cstrong>Rory Little\u003c/strong>\u003c/p>\n\u003cp>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?' \u003c/p>\n\u003cp>Secondly, my guess is they believe they would do better if the right judges were put on the en banc panel. If they get \u003ca href=\"http://www.fjc.gov/servlet/nGetInfo?jid=1803&cid=999&ctype=na&instate=na\">O`Scannlain\u003c/a> or \u003ca href=\"http://www.fjc.gov/servlet/nGetInfo?jid=2981&cid=999&ctype=na&instate=na\">Bybee\u003c/a> or \u003ca href=\"http://www.fjc.gov/servlet/nGetInfo?jid=3121&cid=999&ctype=na&instate=na\">Ikuta\u003c/a> my guess is they might get a stronger dissent. \u003c/p>\n\u003cp>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.\" \u003c/p>\n\u003cp>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. \u003c/p>\n\u003cp>\u003cstrong>Scott Shafer\u003c/strong>\u003c/p>\n\u003cp>In terms of timing, do new briefs have to be filed with the en banc panel?\u003c/p>\n\u003cp>\u003cstrong>Rory Little\u003c/strong>\u003c/p>\n\u003cp>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. \u003c/p>\n\u003cp>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.\n \u003c/p>\u003c/blockquote>\n\u003cp>[ad fullwidth]\u003c/p>\u003cp>[ad floatright]\u003c/p>\n","blocks":[],"excerpt":null,"status":"publish","parent":0,"modified":1329871884,"stats":{"hasAudio":false,"hasVideo":false,"hasChartOrMap":false,"iframeSrcs":[],"hasGoogleForm":false,"hasGallery":false,"hasHearkenModule":false,"hasPolis":false,"paragraphCount":28,"wordCount":1070},"headData":{"title":"Analysis of Prop 8 \u003ci>En Banc\u003c/i> Filing: Proponents Looking For Stronger Dissent to Take to SCOTUS | KQED","description":"Proponents of Proposition 8, California's same-sex marriage ban, have asked the 9th Circuit Court of Appeals for an en banc review of a ruling by a three-judge panel upholding a lower court's striking down the law as unconstitutional. An en banc panel is made up of 11 judges, chosen at random from the circuit. Read","ogTitle":"","ogDescription":"","ogImgId":"","twTitle":"","twDescription":"","twImgId":""},"disqusIdentifier":"57174 http://ww2.kqed.org/news/?p=57174","disqusUrl":"https://ww2.kqed.org/news/2012/02/21/prop-8-en-banc-hearing-deadline-today/","disqusTitle":"Analysis of Prop 8 \u003ci>En Banc\u003c/i> Filing: Proponents Looking For Stronger Dissent to Take to SCOTUS","path":"/news/57174/prop-8-en-banc-hearing-deadline-today","audioTrackLength":null,"parsedContent":[{"type":"contentString","content":"\u003cdiv class=\"post-body\">\u003cp>\u003cfigure id=\"attachment_57193\" class=\"wp-caption alignright\" style=\"max-width: 180px\">\u003ca href=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2012/02/Prop8Sm.jpg\">\u003cimg class=\"size-full wp-image-57193\" title=\"Prop8Sm\" src=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2012/02/Prop8Sm.jpg\" alt=\"Prop 8\" width=\"180\" height=\"122\">\u003c/a>\u003cfigcaption class=\"wp-caption-text\">Protesters at a 2011 hearing on Prop 8. (Photo: Scott Shafer/KQED)\u003c/figcaption>\u003c/figure>\n\u003cp>Proponents of Proposition 8, California's same-sex marriage ban, have asked the 9th Circuit Court of Appeals for an en banc review of a ruling by a three-judge panel upholding a lower court's striking down the law as unconstitutional. \u003c/p>\n\u003cp>An en banc panel is made up of 11 judges, chosen at random from the circuit.\u003c/p>\n\u003cp>\u003ca href=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2012/02/Prop8_EnBanc_Petition.pdf\">Read the petition for an en banc panel here\u003c/a>.\u003c/p>\n\u003cp>Earlier today, KQED's Scott Shafer talked to Hastings law professor Rory Little about the procedure for and the legal strategy behind asking for an en banc panel. Edited transcript \u003c/p>\n\u003cblockquote>\n\u003cp>\u003cstrong>Scott Shafer\u003c/strong>\u003c/p>\n\u003cp>Explain the en banc process. \u003c/p>\n\u003cp>\u003cstrong>Rory Little\u003c/strong> \u003c/p>\n\u003cp>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. \u003c/p>\n\u003cp>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. \u003c/p>\n\u003cp>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.\u003c/p>\n\u003caside class=\"pullquote alignleft\">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.\"\u003c/aside>\n\u003cp>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. \u003c/p>\n\u003cp>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. \u003c/p>\n\u003cp>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. \u003c/p>\n\u003cp>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. \u003c!--more-->\u003c/p>\n\u003cp>\u003cstrong>Scott Shafer\u003c/strong>\u003c/p>\n\u003cp>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?\u003c/p>\n\u003cp>\u003cstrong>Rory Little\u003c/strong>\u003c/p>\n\u003cp>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?' \u003c/p>\n\u003cp>Secondly, my guess is they believe they would do better if the right judges were put on the en banc panel. If they get \u003ca href=\"http://www.fjc.gov/servlet/nGetInfo?jid=1803&cid=999&ctype=na&instate=na\">O`Scannlain\u003c/a> or \u003ca href=\"http://www.fjc.gov/servlet/nGetInfo?jid=2981&cid=999&ctype=na&instate=na\">Bybee\u003c/a> or \u003ca href=\"http://www.fjc.gov/servlet/nGetInfo?jid=3121&cid=999&ctype=na&instate=na\">Ikuta\u003c/a> my guess is they might get a stronger dissent. \u003c/p>\n\u003cp>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.\" \u003c/p>\n\u003cp>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. \u003c/p>\n\u003cp>\u003cstrong>Scott Shafer\u003c/strong>\u003c/p>\n\u003cp>In terms of timing, do new briefs have to be filed with the en banc panel?\u003c/p>\n\u003cp>\u003cstrong>Rory Little\u003c/strong>\u003c/p>\n\u003cp>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. \u003c/p>\n\u003cp>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.\n \u003c/p>\u003c/blockquote>\n\u003cp>\u003c/p>\u003c/div>","attributes":{"named":{},"numeric":[]}},{"type":"component","content":"","name":"ad","attributes":{"named":{"label":"fullwidth"},"numeric":["fullwidth"]}},{"type":"contentString","content":"\u003cdiv class=\"post-body\">\u003cp>\u003c/p>\u003cp>\u003c/p>\u003c/div>","attributes":{"named":{},"numeric":[]}},{"type":"component","content":"","name":"ad","attributes":{"named":{"label":"floatright"},"numeric":["floatright"]}},{"type":"contentString","content":"\u003cdiv class=\"post-body\">\u003cp>\u003c/p>\n\u003c/div>\u003c/p>","attributes":{"named":{},"numeric":[]}}],"link":"/news/57174/prop-8-en-banc-hearing-deadline-today","authors":["80"],"programs":["news_6944"],"categories":["news_6188"],"tags":["news_82","news_323","news_126","news_322"],"label":"news_6944"}},"programsReducer":{"possible":{"id":"possible","title":"Possible","info":"Possible is hosted by entrepreneur Reid Hoffman and writer Aria Finger. 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Hosted by journalists of color, the show tackles the subject of race head-on, exploring how it impacts every part of society — from politics and pop culture to history, sports and more.\u003cbr />\u003cbr />\u003cem>Life Kit\u003c/em>, which will be in the second part of the hour, guides you through spaces and feelings no one prepares you for — from finances to mental health, from workplace microaggressions to imposter syndrome, from relationships to parenting. The show features experts with real world experience and shares their knowledge. 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We cover topics like how fed-up administrators are developing surprising tactics to deal with classroom disruptions; how listening to podcasts are helping kids develop reading skills; the consequences of overparenting; and why interdisciplinary learning can engage students on all ends of the traditional achievement spectrum. This podcast is part of the MindShift education site, a division of KQED News. KQED is an NPR/PBS member station based in San Francisco. You can also visit the MindShift website for episodes and supplemental blog posts or tweet us \u003ca href=\"https://twitter.com/MindShiftKQED\">@MindShiftKQED\u003c/a> or visit us at \u003ca href=\"/mindshift\">MindShift.KQED.org\u003c/a>","imageSrc":"https://cdn.kqed.org/wp-content/uploads/2022/02/mindshift2021-tile-3000x3000-1-scaled-1.jpg","imageAlt":"KQED MindShift: How We Will Learn","officialWebsiteLink":"/mindshift/","meta":{"site":"news","source":"kqed","order":"2"},"link":"/podcasts/mindshift","subscribe":{"apple":"https://podcasts.apple.com/us/podcast/mindshift-podcast/id1078765985","google":"https://podcasts.google.com/feed/aHR0cHM6Ly9mZWVkcy5tZWdhcGhvbmUuZm0vS1FJTkM1NzY0NjAwNDI5","npr":"https://www.npr.org/podcasts/464615685/mind-shift-podcast","stitcher":"https://www.stitcher.com/podcast/kqed/stories-teachers-share","spotify":"https://open.spotify.com/show/0MxSpNYZKNprFLCl7eEtyx"}},"morning-edition":{"id":"morning-edition","title":"Morning Edition","info":"\u003cem>Morning Edition\u003c/em> takes listeners around the country and the world with multi-faceted stories and commentaries every weekday. 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