San Francisco’s 9th Circuit Court of Appeals has decided it will not revisit the constitutionality of California’s Proposition 8 gay marriage ban, which clears the path now for the U.S. Supreme Court to take up the issue.
In an announcement that could lead either to a return to marriage equality in California or a historic case before the U.S. Supreme Court, today the full U.S. Court of Appeals for the Ninth Circuit declined to review a February decision of that court ruling that California’s constitutional amendment stripping loving, committed gay and lesbian couples of marriage violates the U.S. Constitution. With today’s announcement, the proponents of Prop 8 are now likely to seek review by the U.S. Supreme Court and the Ninth Circuit is likely to continue the stay of its decision until that process is complete. In the event that the Supreme Court decides not to hear the case, the lower court ruling would stand and gay and lesbian couples would again be able to marry in California.
An en banc rehearing at the Ninth Circuit Court of Appeals is much different from other circuits. Generally, en banc means that the entire court will rehear the case, with all judges in the circuit participating. But the Ninth Circuit has an inordinately large number of judges, so they have a procedure wherein they have an ‘en banc panel’ consisting of eleven judges: ten randomly-chosen judges plus the Chief Judge (at the Ninth Circuit that is Alex Kozinski) presiding. If rehearing had been granted, the randomly selected panel could have heard arguments and issued new briefing in the case or they could have decided to forgo that and issue a new decision without it.
Now that en banc rehearing was denied, the proponents have 90 days to file a petition for certiorari to the Supreme Court, seeking review of the decision striking down Proposition 8. It’s likely that Justices at the Supreme Court would have their conference to take up the petition and decide whether to grant review or not sometime after their summer break in October. Oral argument would follow a few months later, and then a final decision would be issued by June or July 2013.