If I were a betting man, I would put money on the Prop 8 proponents requesting an en banc hearing before the 9th District Court of Appeals before taking the case to the Supreme Court. I’ve come to this conclusion based on the number of emails from the National Organization for Marriage I’ve gotten in the past week since 3 members of the Court ruled 2-1 that Prop 8 was unconstitutional. I have received a total of eight appeals for money in seven days. (Yes, I’m on NOM mailing list. No, I’ve never given them money.)
Sandy Stier (second from left) and Kris Perry co-plaintiffs and their sons, Elliot (left) and Spencer (right) at a press conference after he Court of Appeals decision.
My view was reinforced when I was informed that the 11 judges that would be hearing the case “En Banc” are drawn at random meaning although highly unlikely it is possible that a majority of judges hearing the Appeal could have been appointed by Republican governors. It would be the luck of the draw.
Co-plaintiffs, Paul Katami (right) and Jeff Zarrillo (second from right) with Jeff’s parents.
There has been debate about whether narrowly defining the scope of the decision so that it only applies to California was a smart legal strategy. I happen to think it was. The Supreme Court has already held in Romer v Evans that if an amendment takes away rights already established then it is unconstitutional. I’ve not heard Justice Kennedy give any indication that he has changed his mind about that decision or any other Supreme Court Justice suggest that he should.
Sign of the times.
Those are reasons based on thought and logic which so far have not proven to be the strong point of the Prop 8 proponents. The main reason I think they will request the appeal be heard again by a larger panel of judges is simply because they can. No matter how confident they are of a victory at the Supreme Court, delay gives them what they want and it gives it to them now. Currently there are no marriages taking place in the state of California except those between a man and a woman and it will remain that way as long as the case is on appeal. Requesting a hearing en banc will add more time especially if the Court agrees to hear it. It could add at least another year to the process.