Will the Prop 8 Case (Perry v. Brown) Go Any Further?

A reader of my blog posting on Tuesday's 9th Circuit decision in Perry v. Brown, the California Proposition 8 case, asked me to clarify what I meant when I said there is no appeal "as of right" from this decision, so I've decided to post my ruminations about whether this case is going further.

This case is over unless either a majority of the judges on the full 9th Circuit Court of Appeals votes to grant a petition for rehearing "en banc" (which in the 9th Circuit's practice would involve the chief judge and ten other judges drawn at random from the list of active [not retired "senior status"] judges of the Circuit) and/or unless at least four Justices of the United States Supreme Court vote to grant a petition for writ of certiorari.  The first question now confronted by the losing party in Tuesday's decision, the Proponents of Proposition 8, is whether to file a petition for rehearing en banc, or whether to file a petition for writ of certiorari.  They do not have to seek rehearing before seeking Supreme Court appeal, but petitioning the Supreme Court would cut off their opportunity to seek en banc review. 

If they want to prolong the agony of delaying implementation of District Judge Walker's injunction against the enforcement of the constitutional amendment created by Prop 8, they would first file for en banc rehearing, which would delay a final decision at the court of appeals level for a substantial period of time if the petition for rehearing is granted, since the grant of such a petition would vacate the panel decision and, most likely, keep the stay in effect while new briefs are filed and a new hearing is scheduled by the 11-judge panel, which then would take some time to render its decision. 

This route probably makes more sense for Proponents as a litigation strategy as well, since by-passing the en banc petition stage gives up one bite at the apple when they theoretically have up to two bites left.  If they can get the panel decision supplanted by an en banc decision in their favor, they don't need to seek Supreme Court review, and the question whether to seek such review would go to the Plaintiffs-Appellees, the challengers of Prop 8.  We know that the Plaintiffs would file such a petition, since their avowed aim in filing starting this lawsuit was to obtain a U.S. Supreme Court ruling holding that same-sex couples have a constitutional right to marry.  That's the question as to which the 9th Circuit panel abstained this week, deciding on the narrower ground that once a constitutional right is granted, it may not be revoked except for some rational justification, which the court found lacking in this case.

What might happen in an en banc panel, which would include the three judges from the panel that issued the decision on Tuesday?  Without knowing who else would be on the en banc panel, it is difficult to predict.  The 9th Circuit has a reputation as a liberal circuit, but Presidents Reagan and George W Bush got to appoint nine judges who are active members of the Circuit.   Presidents Carter, Clinton and Obama appointed the other sixteen who are now sitting.  There are four authorized seats now vacant, an example of the slowness of President Obama to appoint new circuit judges and the reluctance of Senate Republicans to agree to bring their nominations to a vote.  (Since Republicans hold more than 40 seats in the Senate, under current Senate rules by which the minority can file a motion requiring 60 votes to bring a measure to the floor, they can effectively block a vote on any nomination they target for defeat.)  This means the overall balance of the Circuit is more liberal than most circuits, and a random draw would probably result in an 11 judge bench with Democratic nominees outnumbering Republican nominees, since almost 2/3 of the judges on the Circuit are Democratic nominees.  (In that sense, the 3-judge panel that decided this case, which was randoming composed, is politically representative of the circuit, with the resulting, somewhat predictable, 2-1 vote.) 

Some of the Democratic appointees are not so liberal, and some of the Republican appointees have emerged on the bench as more libertarian on gay rights than might have been anticipated when they were appointed.  For example, Chief Judge Alex Kozinski, appointed by Reagan, is unpredictable on gay rights cases, but he did write a strong decision (albeit in his role as an internal 9th Circuit grievance-decider rather than in an opinion for the circuit court) holding that a lawyer employed by the Circuit in a staff position who married her same-sex partner in California in 2008 was entitled to enroll her spouse in the federal employee benefits program, despite the federal Defense of Marriage Act.  (That ruling is now playing out in subsequent litigation by the employee against the federal Office of Personnel Management, in a case pending in US District Court, because OPM refused to comply with Judge Kozinski's order.) 

Proponents might look at this overall 9th Circuit line-up and decide that they don't have a great shot at winning a reversal.  They may seem to get an advantage if they are the party that applies for certiorari to the Supreme Court, because they then get first shot at framing the questions presented to that Court in their petition.  (Of course, if it decides to grant certiorari, the Court is free to rewrite the questions on which review is granted…)  If they win a reversal en banc in the 9th Circuit, they know that Plaintiffs will file a certiorari petition, and get the first shot at framing the question to the Supreme Court.  If getting the case to the Supreme Court is a high priority for both sides, petition for en banc rehearing makes little sense for Proponents.  Another thing to bear in mind is that the 9th Circuit is generally reversed by the Supreme Court more often than the other circuits, reflecting the different "political" balance of the appointments.

What might happen at the Supreme Court?  There's already lots of speculation out there, so the first thing to say is that the Supreme Court has yet to decide any case about same-sex marriage, even though Justice Scalia charged, in his dissent in Lawrence v. Texas (2003), that the reasoning of the majority opinion by Justice Kennedy opened the way for same-sex marriage.  In that dissent, Scalia reasoned that the only real justification for excluding same-sex couples from marriage — taking the Court's ruling that sodomy laws were unconstitutional into account — was a legislative judgment that such relationships are immoral, and that the Court's Lawrence opinion seemed to eliminate moral judgments as a basis for making laws.  Scalia, as usual, was overstating his case for dramatic effect.  Subsequent lower federal court rulings have generally given a narrower reading to Lawrence, particularly noting that it had to do with the validity of a criminal statute, and that Justice Kennedy had himself apparently narrowed the scope of the holding by mentioning various issues that the court was not deciding.  In particular, Justice Kennedy made clear that the Court was addressing only the constitutionality of the sodomy law, and not whether states are required to extend legal recognition to same-sex relationships.

Since Lawrence was decided, four Justices have retired and four have been appointed and confirmed.  Two were appointed by President Bush (Roberts and Alito) and two by President Obama (Sotomayor and Kagan).  Most Supreme Court watchers generally see all four as being more conservative than the Justices they were replacing – chronologically, Rehnquist, O'Connor, Souter, and Stevens.  So the Court as a whole is seen as being perhaps a bit further to the right than it was at the time Lawrence was decided.  But overall, the four Democratic appointees on the Court – Ginsberg, Breyer, Sotomayor and Kagan – are seen as moderate-left, while four of the Republican appointees – Roberts, Scalia, Thomas, Alito – are seen as relatively hard-right.  Kennedy, the author of Lawrence (and of Romer v. Evans, the opinion on which the 9th Circuit panel majority relied for its reasoning), is somewhere in the middle, generally (but not always) the "swing vote" in close cases, more of an economic conservative and on social issues, sometimes more of a libertarian (although his votes in discrimination and affirmative action cases have been more in the conservative direction much of the time, except, of course, for Romer v. Evans!).  Some press reports indicate that Kennedy knows and is friendly with gay people — he has taught, for example, as an adjunct lecturer at McGeorge Law School in his hometown of Sacramento, and there are openly gay faculty members there — and that this has affected his openness to gay rights arguments.  While on the 9th Circuit prior to his appointment to the Supreme Court, he raised doubts in one opinion about the constitutionality of the policy then followed by the military of discharging gay members.  But where this turns out on Proposition 8 — who can say?

Four votes are necessary to grant certiorari.  The four Justices to the right, presuming they would be disposed to overrule the 9th Circuit, would be unlikely to vote for Proponents' petition for certiorari (on a theory of strategic cert voting) if they thought Kennedy was likely to vote to affirm.  The four Justices to the center-left, presuming they would be disposed to affirm the 9th Circuit panel opinion, would be unlikely to vote for a petition for certiorari from Proponents if they thought Kennedy was likely to vote to reverse.  But Kennedy is unlikely to signal any predisposition in this case, and there is lively speculation about whether Kennedy would see the 9th Circuit opinion as an appropriate application of his ruling in Romer or whether he would see a need re-examine Romer in light of the California facts of the Prop 8 case.  Because judges are not supposed to announce a position on a case before it is briefed and argued, and in their function as judges they should reserve forming a conclusion before they have read the briefs and heard the arguments of the parties and discussed the matter in conference, nobody will know for certain where they stand.  Confident predictions about how the Court will decide a case or how individual Justices will vote are sometimes proved wrong.

For example, although he wrote the decision in Romer, striking down Colorado's anti-gay Amendment 2, Justice Kennedy voted with the majority in Boy Scouts of America v. Dale, signing on to Chief Justice Rehnquist's opinion holding that the Boy Scouts had a First Amendment right to exclude gay men as Scout leaders.  And despite some predictions, not one member of the Court voted to affirm the Massachusetts Supreme Judicial Court's ruling that a gay Irish group was entitled to march as a unit in the Boston St. Patrick's Day Parade.  So predicting is an awkward business.

I continue to believe that because of the narrow basis on which the 9th Circuit ruled, there is a good chance that the Court would deny a cert petition filed by the Proponents.  I haven't really thought much yet about whether the Court would be likely to grant a cert petition filed by the Plaintiffs, if the 9th Circuit grants en banc rehearing and rules for the Proponents.  One step at a time….

9 thoughts on “Will the Prop 8 Case (Perry v. Brown) Go Any Further?

  1. A correction: The Ninth Circuit’s “limited en banc court” consists of Chief Judge Kozinski and 10 other randomly drawn active judges. (9th Cir. R. 35-3.) The three judges who made the panel decision (Reinhardt, Hawkins, and N.R. Smith) are eligible to serve on the en banc panel, but only if drawn at random like any other active judge. There is no guarantee that any of them will serve on the limited en banc panel if rehearing en banc is granted.
    Ninth Circuit Rule 35-3 also authorizes “a rehearing by the full court following a hearing or rehearing en banc” — all 25 active judges — but so far it’s never been done. (See, e.g., Hon. Pamela Ann Rymer, The “Limited” En Banc: Half Full, or Half Empty?, 48 Ariz. L. Rev. 317, 317 n.2 (2006).)

  2. Thanks for the correction. I’ll modify my comments in the article. I had thought that it was usual for the panel to be part of the en banc, as some notable en bancs in the past had included the members of the panel. I’m thinking particularly of the Perry Watkins case. I’m wondering whether the Circuit modified its rules from earlier times.

  3. I don’t think it’s changed. I think it’s just that luck of the draw usually results in 1 or 2 of the merits panel judges ending up on the en banc court, but sometimes all 3.
    In fact, in the Watkins case, the panel consisted of Norris, Canby, and Reinhardt, but only Norris and Canby ended up on the en banc court.

  4. Thank you for this informative post. May I ask 2 follow-up questions:
    1. Would you please set forth the likely time spans from today until the various possible end points for the case? That would be a rough estimate time from today until i) the en banc petition is denied, ii) the en banc petition is granted and fully decided, iii) cert is denied and iv) cert is granted and the Sup. Ct. rules.
    2. I don’t understand why you and other legal analysts are so sure that Roberts and Alito would be likely to uphold Prop 8. Is there anything in their record on Equal Protection or gay rights that would lead you to conclude this, or is this just media groupthink in action? I read that Roberts took a bold public stance tht gays should be included in antidiscrimination rules at his college or law school back in 1972. I am not aware of anything in his or Alito’s record that would suggest that they would be inclined to trounce the panel’s ruling.

  5. I don’t think anybody can predict these times with certainty. While there are relatively short deadlines for filing petitions for en banc rehearing or for certiorari, and for the filing of any responding briefs arguing against en banc review or certiorari, the courts involved don’t have set deadlines for how quickly they rule on the petitions, and then if review is granted, there are the issues of briefing schedules and argument schedules. Once matters have been argued before a 9th Circuit en banc panel, I don’t think there is any set time limit on how long they may take to render a decision. At the Supreme Court, they try to issue a decision within the same term of the Court that the case is argued.
    So, hypothetically, if Proponents file a cert. petition within the next few weeks, then there is some period of time for the respondents to file their brief arguing against granting of cert., and sometimes in a case like this the Court might even solicit a brief from the state of California, since it is the constitutionality of a provision in its state constitution that is at issue. Then after the responding brief has been filed, they may take a few weeks to rule on it, but if they granted the petition sometime this spring, oral argument would be set for sometime in the fall, and I believe it wouldn’t be scheduled until the parties had submitted their briefs on the merits. I suspect we are too far into the term for this case to be argued during the Oct. 2011 term of the Court, especially given the rather heavy schedule they have for the remainder of this term (including the consolidated challenges to the Obama Administration’s health care law).
    So, on this scenario, if Proponents decide to by-pass en banc and go directly to a cert. petition, the likelihood would be that if cert. is granted the case would be argued during the Court’s term that begins October 2012 and ends June 2013, with an opinion being issued sometime before the end of June 2013.
    Of course, if the Supreme Court denies cert. in this scenario, that’s the end of the case, any stay that might be in effect would end, and Judge Walker’s injunction against enforcement of Prop 8 would go into effect.
    If they want this to string out longer, Proponents may seek en banc rehearing, which I suspect, if granted, would through a speed-bump into the case that could be as short as several months or could extend a year or more. If they went that route, it would be interesting to see whether the 9th Circuit would continue the stay; given their actions in this case so far, I suspect that they would.
    So this sets up an interesting timing question for the groups talking about getting a constitutional amendment in favor of same-sex marriage onto the California ballot. If it looks like the case may string out for several years, they may want to go ahead and try to get it on the ballot this year. If it looks like this is not going to string out beyond June 2013, maybe they can be patient?
    As to predicting how S.Ct. justices might vote, I think people are assuming that Roberts and Alito would probably vote the way Scalia and Thomas would vote on this issue, based on the odds derived from their voting patterns in past cases. I don’t think there have been any signs that Roberts or Alito are more open to gay rights arguments than Scalia and Thomas. One can only hope.
    If Scalia wants to be consistent with his articulated views on Supreme Court stare decisis and his characterization of the impact of the majority opinion in Lawrence on the constitutional right of same-sex couples to marry (see his dissent in Lawrence), then he should be voting to affim, either on the narrower Romer-based theory of Reinhardt’s panel decision or the broader theory of Walker’s trial opinion. But Scalia is sometimes difficult to predict – see, for example, his votes in the flag-burning cases. On the other hand, the vehemence of his Lawrence and Romer dissents suggests to me that he will never vote in favor of a gay rights claim, regardless of the subject matter of the case.
    Wouldn’t it be great, however, to get a unanimous affirmance of this week’s decision, even if it meant concurring opinions proposing different reasoning for how they get there? But I would be very surprised if that happened.

  6. Thanks for your response. I understand that the Supreme Court does absolutely nothing b/t June and September. So if the case ends with a cert denied, then the earliest that can happen is September 2012, when they get back from their break. If cert is granted, then I agree with you that the case will end with a decision rendered in June 2013. If there is an intervening en banc appeal, then I think that would add 6-12 months to the whole timeline, meaning that, in the most drawn-out scenario, the latest the case could end likely would be June 2014.
    There is no way this is going back on the ballot. That effort would cost $50-60 million. It just won’t happen if it looks like there is a good chance of prevailing in court. Also, under new CA legislation, any ballot measures must be voted upon on a regular November election day. Marriage equality advocates would not want this considered in an off year election, so they would be looking at November 2014 or November 2016 in any event. So there isn’t much of a timing conundrum for them. They will wait out the process and only if they lose will they go back to the ballot. If that happens, given demographic shifts by 2014 or 2016, they will win anyway.
    You say there is no reason to think that Alito and Roberts would be more open to gay rights arguments than Thomas and Scalia. I doubt if Thomas or Scalia were taking up the cause of gay rights on campus in 1972, as Roberts did. But even disregarding that, there is also no reason to believe that they would be less open to such arguments than Thomas and Scalia. I am not aware that either Alito or Roberts has any record in Romer-type cases that would allow us to infer their vote in Perry. I think they are getting this rap b/c they are Bush appointees and b/c they have proven to be very conservative in business/commercial cases.
    I do agree that Scalia and Thomas are beyond hope. The best outcome here would be 7-2.

    • lurker:I underadstand that the SCOTUS is free to disadreadgard its prior ruladings on issues and I recadogadnize that it has done so in the past. a0Howadever, in the event the SCOTUS dceedis to take up the issue (I don’t believe that Baker stands for the propoadsiadtion that they’ve already done so), I’ll be be anxadious to see how they would legally jusadtify upholdading bans on same sex maradriages in light of the Lovading rulading. a0Maybe I’m being a blockadhead about it, but I just don’t see how they could — and a cynadiadcal part of me wonadders if this is why they’ve, thus far, declined to conadsider thea0issue. a0a0All I can say is so far they haven’t conadsidadered ‘same-​​sexa0 maradriage’ to be just ‘maradriage’.a0a0 And all the efforts to stop it go to that point (e.g. California’s Propoadsiadtion 8 didn’t take away any subadstanadtive benadeadfits, ONLY the right to cal themadselves ‘maradried’).a0a0a0 Once it’s called ‘maradriage’ the game’s over except for some mopup operadaadtion as to why you can’t marry your child or whatadever.a0 That arguadment is now paper-​​thin, and may well be kicked down in the next major deciadsion.a0 Let’s hope so.Now look,a0 I give my reaadsons for EVERYTHING. a0 You tell me why you don’t think Baker will apply here.a0a0

  7. Actually, it is possible that a cert denied decision could be rendered this term, if the Proponents file their petition promptly and the respondents then file their opposition papers promptly. So this might be concluded by June.
    I think what Roberts was doing as a law student is not a necessary prediction of what he would do on the same issue today as Chief Justice of the United States.
    I’ve seen some interesting commentaries in the last day or two about how the Court could decide to use this case as a vehicle to reach the question the panel decided to avoid – whether same-sex couples have a right to marry by virtue of the 14th Amendment. If they were to do that, this case could also be the basis of deciding the pending DOMA cases.

  8. Do keep in mind that the conadseradvadaadtive activists on the Roberts court don’t give a damn about stare deciadsis. Alito, Roberts, and Scalia will dciede howadever they damn well feel like decidading, and will invent a nonadsense jusadtiadfiadcaadtion for it. Thomas is the viladlage idiot, and usuadally funcadtions as Scalia’s sockpuppet.If there is a way to advance fasadcist coradpoadratist goals, that’s how these four will dciede. (See: Citadiadzens United.) In this case, coradpoadrate interadests don’t seem to be involved.If there is a way to advance reliadgious funaddaadmenadtaladism, they will foladlow that route. This is more subadtle than it seems, because they are aware (for examadple) than infringeadments on freeaddom of speech can later bite fundies in thea0butt.If there is a way to advance Repubadliadcan interadests, they’ll do that. In this case, it’s hard to say, because naradrowly upholdading same-​​sex maradriage leaves gay bashading on the table for future elecadtions, whereas issuading a sweepading deciadsion setadting maradriage as hetaderoadsexadual monopadoly makes the right wing think they’ve won, and might dampen future enthuadsiadasm on theira0part.In any case, past judiadcial deciadsions are irreladeadvant, because if the conadseradvadaadtive activists want to dciede against those cases, they’ll simadply quote some of the preadviadous (overadruled) objecadtions, and claim those were the proper interpretations.So it comes down to Kennedy as a swing vote. It will depend on how he’s swingading thata0day.

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