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Back to Section One | Back to Arts & Entertainment
posted Friday, February 24, 2012 - Volume 40 Issue 08
Prop 8 supporters appeal to full Ninth Circuit
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Prop 8 supporters appeal to full Ninth Circuit

by Mike Andrew - SGN Staff Writer

Supporters of California's Prop 8 - which took away marriage equality in that state - announced on February 21 that they will appeal a February 7 decision that the measure is unconstitutional.

A three-judge panel of the federal Ninth Circuit Court of Appeals ruled that Prop 8 violates the 14th Amendment rights of Gay and Lesbian couples to due process and equal protection of the laws.

Charles Cooper, lead attorney for Prop 8 supporters, said that his clients would ask the full Ninth Circuit Court to review the panel's decision. February 21 was the deadline to ask the full court to hear the case.

Prop 8 supporters had the option of appealing directly to the U.S. Supreme Court, but many legal experts believe the Supreme Court has no interest in hearing the case. An appeal to the full Ninth Circuit Court almost guarantees that the case will not reach the Supreme Court before the November elections.

In most federal appeals circuits, en banc review involves all of the active judges on the court, but the Ninth Circuit has adopted a special 'limited en banc' process because of the large number of active judges on the circuit - 29.

All active Ninth Circuit judges will vote whether to review the panel's decision, but only 11 judges will actually hear the arguments.

If a majority of the Ninth Circuit's judges support en banc review, then the chief judge of the circuit, Judge Alex Kozinski, and 10 randomly selected appellate judges will hear the appeal, which can include briefs and oral arguments.

After the 11 judges announce their ruling, a dissatisfied party can, in theory, ask all 29 Ninth Circuit judges to review the case, but the court has never agreed to do so since adopting the 'limited en banc' procedure.

An unsuccessful party could then petition the U.S. Supreme Court to hear the case.

At that point, the parties would submit written arguments explaining to the court why the justices should or should not hear the case. Four of the nine Supreme Court justices must agree to hear the appeal.

Typically, the Supreme Court takes cases involving broad legal principles which need to be applied on a national scale, or cases where several circuit courts have issued contradictory rulings.

Observers say neither situation applies in the Prop 8 case, since the Ninth Circuit panel's decision is limited to the specific circumstances of marriage in California.

If the Supreme Court did accept the Prop 8 case, another round of briefs would be submitted, with the parties and outside organizations and individuals arguing the merits of the case to the justices.

Oral arguments would then be set and held at the Supreme Court, with a decision handed down at some later date.

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