Today was the deadline for the Proponents of Proposition 8 to file a motion for rehearing en banc in the 9th Circuit case of Perry v. Brown, and this morning Charles Cooper, their attorney, announced that they would be filing the petition today.
Two weeks ago, a three-judge panel voted 2-1 to affirm former Chief District Judge Walker's August 2010 decision that Proposition 8 – which amended the California Constitution to provide that only the marriage of one man and one woman is valid or recognized in California – is unconstitutional. The panel ruled on narrower grounds than Walker, holding that Proposition 8 failed 14th Amendment Equal Protection review, because there was no rational basis for revoking the right of same-sex couples to call their relationship marriage while leaving intact existing California law under which same-sex domestic partners who register with the state are afforded all the state law rights and benefits of marriage. (Walker had ruled more broadly that same-sex couples have a constitutional right to marry under the 14th Amendment; the panel said that there was no need to decide that broader issue in this case.)
By filing a petition for en banc rehearing, the Proponents make it highly unlikely that the U.S. Supreme Court will consider this case before the November 2012 general election. There is no predicting how long the full circuit of more than 25 judges will take to decide whether to grant rehearing. Even if it is just a matter of weeks and they turn down the petition, that would reset the 90-day-clock for filing a petition with the U.S. Supreme Court seeking certiorari, and a cert petition filed in March or April, even if ultimately granted, would be granted too late for oral argument during this term of the Court, which would normally end around the last week of June. So if cert is granted, oral argument would be held during the next term of the Court, which begins early in October. Even if this was among the first cases argued, it would be unlikely to result in an opinion being issued prior to Election Day just a month later, and given the timing of everything, it seems unlikely that this would necessarily be among the first cases scheduled for argument in the fall.
If a majority of the active judges on the Circuit vote to grant the petition for rehearing en banc, the panel decision will be vacated, and a special panel of eleven judges will be constituted, with Chief Judge Kozinski presiding and ten others chosen at random from among the active judges. Given the overall composition of the Circuit, it is highly likely that a majority of the judges on the 11-judge panel will be appointees of Democratic presidents, for what that is worth. (This helps to explain why the 9th Circuit is reputedly the Circuit whose decisions are most frequently reversed by the Supreme Court, which has had a Republican-appointed majority for many decades.) The en banc panel would then call for briefing and hold oral arguments, which means that a decision from the en banc panel would not be likely before Election Day, unless they really expedite things.
The County Clerk of Imperial County had petitioned the 9th Circuit for an extension of time to file a motion for rehearing en banc of the panel's decision, issued the same day as the Perry v. Brown ruling on the merits, against allowing the Clerk to intervene as an Appellant. If that extension wasn't granted, their petition would also be due today.
Among the possible twists and turns that the case could take before an en banc panel could be a determination that the three-judge panel erred in holding that the Proponents of Proposition 8 had standing to appeal Judge Walker's ruling, in which case the en banc panel would not reach the merits and would dismiss the appeal. Alternatively, the en banc panel could affirm or reverse Walker's broader constitutional ruling on the merits, or it could affirm on some other theory, including the narrower theory embraced by the majority of the three-judge panel. There was a dissent in the three-judge panel that argued there was a rational basis for denying the word "marriage" to same-sex couples, rather weakly argued, which could be adopted by the en banc court. Hard to speculate much more before knowing the composition of the en banc panel and, even then, this case is unlike anything else the 9th Circuit judges have been called to rule upon.
Meanwhile, what happens to Judge Walker's Order, which included an injunction against enforcement of Proposition 8? It has been on hold ever since the appellate process got under way. If the Proponents did not file a petition today, the 9th Circuit panel's mandate would have been filed, which would have lifted the stay pretty quickly, although one would expect that the Proponents would file a petition to extend the stay pending their filing of a cert petition. News reports indicate that counsel for the Plaintiffs (challengers of Prop 8 in the trial court, now appellees), Ted Olson and David Boies, planned to seek to have the stay lifted, arguing that Prop 8 has now been declared unconstitutional by two courts, but that seems quite unlikely at this stage of the proceedings.
Something interesting to watch for down the line, however, would be what might happen if the 9th Circuit either denies the en banc petition or ultimately rules on the merits that Prop 8 is unconstitutional. Proponents could get the Order stayed while preparing their cert. petition, which then delays same-sex marriages in California further. Ultimately it seems likely that if the Supreme Court is interested in this case, it would stay Judge Walker's Order while the appellate process continues.