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Prop. 8 Proponents File Papers Asking 9th Circuit for a Rehearing of Perry Case

By Karen Ocamb
News Editor
As reported earlier, the proponents of Prop 8 officially asked the 9th Circuit Court of Appeals for a reconsideration of the Feb. 7 decision by the 9th Circuit’s three-judge panel finding Prop. 8 unconstitutional in Perry v. Brown.

After a briefing by both sides, all 25 active judges in the 9th Circuit will now have to determine whether to grant a rehearing. If the majority votes yes, Chief Judge Alex Kozinski and 10 randomly selected circuit judges will hear the appeal in an en banc hearing. No telling how long this process will actually take, which continues the stay on same-sex marriages and the discrimination and pain of second-class citizenship.

As Chris Geidner explains in Metro Weekly, in their filing today, the Prop. 8 proponents argued that the 9th Circuit majority erred in accepting the Perry attorneys misapplied and implausible reading and comparison of the Prop. 8 case with the Colorado Amendment 2 case Romer v. Evans.

Geidner writes:

Specifically, the proponents argue that the “root of the panel majority’s error” was its determination that the timing of the enactment of the provisions—Amendment 2 in Colorado and Proposition 8 in California—was relevant to the provisions’ constitutionality. The panel opinion found it relevant that the ability of same-sex couples to marry in California was taken away by the enactment of Proposition 8. Of that, today the proponents argue:

[I]n declaring a state constitutional right to same-sex marriage in the Marriage Cases, the California Supreme Court not only overturned the statutory will of the People in Proposition 22, it also refused to defer its decision until the constitutional will of the People could be expressed on Proposition 8 at the ballot. And that decision, according to the panel majority in this case, rendered the will of the People irrelevant in any event; for once the California Supreme Court redefined marriage to include same-sex couples, the People of California were powerless, as a matter of federal constitutional law, to exercise their reserved right to [amend their state constitution.]

Then, the proponents argue: “Putting aside the red herring of its timing, it is plain that Proposition 8 differs sharply from Amendment 2 in every material respect.” Writing about the narrow scope of Proposition 8, the lawyers for the proponents write:

The panel majority, however, turns Proposition 8′s virtue into its vice, reasoning that its narrowness “makes it even more suspect” than Amendment 2. This assertion simply cannot be reconciled with Romer. A critical part of the Romer Court’s reasoning was that Amendment 2′s “sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects.”

Later they add: “Proposition 8 does not single out a ‘named class’ for disparate treatment. Rather, it simply preserves the definition of marriage that has prevailed throughout human history.”

In a streak of populism, the proponents state, “To its credit, the panel was unwilling to join the Plaintiffs and the district court in defaming the People of California by attributing their support for traditional marriage to “a bare … desire to harm a politically unpopular group,’” one of the holdings of the Supreme Court about Amendment 2 in Romer.

The proponents’ lawyers go on to address how they view the panel opinion as ignoring certain Supreme Court precedent that they view as contrary to the Feb. 7 decision, including whether states’ decisions to “do ‘more’ than the Fourteenth Amendment requires” can later be rescinded and whether the “traditional definition of marriage” as between one man and one woman is constitutional.

To me, this latter section suggests the Prop. 8 proponents are preparing arguments to go before the U.S. Supreme Court.

READ the proponents’ filing: ProponentsEnBanc.pdf

The American Foundation for Equal Rights responded immediately with a press release that reads in part:

The request for a larger eleven-judge panel of the Ninth Circuit to reconsider the case, known as rehearing en banc, is only granted upon a majority vote of the Ninth Circuit’s 25 judges in regular active service. A petition for rehearing en banc temporarily stays the three-judge panel’s decision striking down Proposition 8.

Proponents also renewed their baseless attempt to impugn the reputation of the United States District Chief Judge who struck down Proposition 8. Unable to defend Proposition 8 on its merits, Proponents claim that the now-retired Chief Judge Vaughn R. Walker was disqualified from ruling on Proposition 8 and that his historic decision should be vacated because he is gay and in a committed relationship. The Ninth Circuit unanimously rejected Proponents’ offensive argument, stating: “To do otherwise would demonstrate a lack of respect for the integrity of our federal courts.”

“We are ready to defend our victory whatever path this case takes,” said Plaintiffs’ attorney Theodore J. Boutrous, Jr. “Because our plaintiffs have the right to get married, which both the Federal District Court and Ninth Circuit Court of Appeals vindicated, we oppose en banc review and will seek to bring that fundamental right to reality at the earliest possible time for the tens of thousands of Californians who are being denied basic justice, due process and equality.”

“Today’s petition shows how far the anti-marriage proponents of Proposition 8 will go to ensure that gay and lesbian Americans remain second-class citizens,” said AFER Board President Chad Griffin. “It is time for this discrimination to come to an end once and for all. Separate is never equal—and I am confident that one day, very soon, every American will be able to enjoy the fundamental freedom to marry.”


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