SAN FRANCISCO — Supporters of California‘s ban on same-sex marriage are petitioning a review by the entire Ninth U.S. Circuit Court of Appeals after a three-judge panel of the court ruled the marriage ban as unconstitutional.
Charles Cooper, lead attorney for the defendants — “Protect Marriage” and “Yes On 8” — announced Tuesday that the request for an en banc review by the circuit court had been made — a process that usually takes months to be completed.
According to Chris Stoll of the National Center for Lesbian Rights, “If a party asks for en banc review, the request is sent to all of the 20-something active judges on the court. Memos are often exchanged between the judges before a vote takes place on whether to take the case en banc. If they take it, names are drawn for the panel and a whole new series of briefs are usually filed, which takes a few more months. Then they hold oral argument and issue a decision. It is really almost like starting the whole appeal all over again.”
The proponents’ decision today means that the road to a final decision on Prop 8 just got much longer.
Nonetheless, the plaintiffs’ attorneys have made it clear that they will seek to have the stay lifted, now that Prop 8 has been struck down by two separate courts.
In the Ninth Circuit’s own guidelines, the court says that an en banc rehearing should only be heard if:
1) there is a need for “uniformity” in the court’s decision,
2) the matter is a “question of exceptional importance,” or
3) the ruling “directly conflicts with an existing opinion by another court of appeals or the Supreme Court.”
Proponents of Proposition 8 are likely to argue that the case is a matter of “exceptional importance,” but they may face an uphill battle convincing a majority of the Ninth Circuit that the appeals panel’s decision needs to be reconsidered, said Stoll.
In a 2 to 1 decision, the three-judge panel ruled Feb. 7 that California’s same-sex marriage ban violated the federal constitution.
It was, noted many attorneys working on the issue of equal rights for LGBT people, the first time a federal appeals court has issued a decision in favor of marriage equality for same-sex couples.