February 21, 2012 Print

California Marriage Amendment Appealed to Full 9th Circuit

by Karla Dial

ProtectMarriage.com, the legal team defending the California marriage amendment known as Prop. 8, announced this afternoon that they are appealing the case to a retinue of judges at the 9th U.S. Circuit Court of Appeals, rather than going straight to the U.S. Supreme Court.

On Feb. 7, a three-judge panel from the 9th struck Prop. 8 down, reasoning that since the California Supreme Court had previously extended marriage to same-sex couples in the state, the 2008 voter initiative to keep the definition of marriage as the union of one man and one woman unconstitutionally revoked a “right.”

“This gives the 9th Circuit, the entire 9th Circuit, a chance to correct this really anomalous decision by just two judges overturning the votes of seven million Californians,” said Andy Pugno, general counsel  for ProtectMarriage.com. “When there are bad decisions, we have to deal with those and build a record so that we have a full record and all the legal arguments in front of the Supreme Court.”

The filing means Chief Judge Alex Kozinski will be joined by 10 other judges chosen by lottery from among the 28 on the 9th Circuit. The three-judge panel which previously decided the case on a 2-1 decision contained Judge Stephen Reinhardt, who is married to the former executive director of the ACLU of Southern California.

“At least it will be more representative of the entire 9th Circuit, not just two judges who issued this very bad decision,” Pugno said. “If the 9th Circuit rehears this case, we’ll have to argue some new issues that were raised by the two judges that voted to nullify Prop. 8, because they did so really on kind of unexpected and unusual grounds.”

Though the case will certainly be appealed to the U.S. Supreme Court eventually, CitizenLink Judicial Issues Analyst Bruce Hausknecht pointed out the advantages of asking for an en banc review by the 9th.

“This keeps all options available,” he said. “Although the 9th Circuit is dominated by Democrat-appointed judges, there is always the hope that the 11-judge en banc panel chosen via lottery could contain enough judicial conservatives that it might reverse the three-judge panel’s decision. And failing that, the Supreme Court option is always available afterward. It’s always wise, in the uncertain world of litigation, to keep your options open and explore all available alternatives.”

The 9th Circuit has the option of turning the case down. If that happens, the ProtectMarriage.com legal team will immediately appeal to the U.S. Supreme Court.

“If the 9th Circuit does agree to rehear the case, there’s no telling how much time they will take,” Hausknecht said, “but it could be months before a new decision is issued.”

Read the 9th Circuit’s decision on Prop. 8.

Read ProtectMarriage.com’s appeal to the 9th Circuit.