Proposition 8 backers, who have longed to get to the nation’s highest court, debated Wednesday whether to go there immediately or delay by seeking another review of a federal appeals court ruling that overturned California’s 2008 ban on same-sex marriage.
ProtectMarriage, the Christian conservative sponsor of Proposition 8, is expected to announce next week whether to ask a larger panel of the U.S. 9th Circuit Court of Appeals to reconsider Tuesday’s ruling, a decision that could postponeU.S. Supreme Courtreview for months.
In the meantime, gay rights lawyers said they would fight to end the legal hold, or stay, on Tuesday’s decision when it expires in about three weeks.
Legal scholars said the challengers faced a high hurdle, and the hold was likely to remain until appeals were exhausted, which could take more than year.
Andy Pugno, general counsel for ProtectMarriage, observed that a judge on the 9th Circuit might independently call for fellow jurists to vote on whether to review the ruling. Whether such a vote would gain majority support remained doubtful, law professors said.
Democratic appointees outnumber Republican appointees on the 9th Circuit, UC Irvine Law School Dean Erwin Chemerinsky observed. “I have no doubt that there is a core group of conservatives that will want to go” for reconsideration, he said. “But I can’t imagine they will have the votes.”
Chemerinsky said he asked his law students Wednesday whether they would recommend ProtectMarriage seek a rehearing in the 9th Circuit or go to the Supreme Court. “They split,” he said.
UC Davis constitutional law professor Vikram Amar said it made sense that ProtectMarriage would want 9th Circuit review to get “two bites of the apple.”
If a majority of active circuit judges voted to rehear the case, a panel of 11 judges would be randomly drawn to decide it. Their decision could then be appealed to the Supreme Court.
Rehearing would permit the 9th Circuit to reframe the legal case and deliver a ruling that would affect marriage laws in other states, the outcome preferred by ProtectMarriage’s supporters, Pugno said. Tuesday’s ruling was limited to circumstances in California and would not affect other states.
A ruling by a larger 9th Circuit panel also “would raise the profile of the case and increase the attention the Supreme Court would give to it,” Pugno said.
But he cautioned that the legal team was still debating strategy. In the past, ProtectMarriage lawyers have said they wanted to get to the Supreme Court as quickly as possible. “Everybody knows the Supreme Court is almost certain to review this case,” he said.