Charles Cooper, the lead attorney for the proponents of Proposition 8, tells Metro Weekly that the proponents of the California marriage amendment will be asking the full U.S. Court of Appeals for the Ninth Circuit to review the three-judge panel decision issued on Feb. 7 holding that Proposition 8 is unconstitutional.
Although Cooper, of Cooper and Kirk PLLC, told Metro Weekly the filing has not yet been made, the filing is expected later today as today is the deadline for the filing to seek en banc review.
The move almost guarantees that the U.S. Supreme Court will not consider the case before this November’s presidential election.
Usually, en banc review involves all of the active judges on the court, but the Ninth Circuit — due to the more than 20 active judges on the circuit — has adopted a unique “limited en banc” procedure in which all the active Ninth Circuit judges vote whether en banc consideration will be given but only 11 judges hear the en banc consideration. That will be the request made by today’s filing by the proponents.
This is an interesting development in gay marriage litigation and takes the issue away from the U.S. Supreme court during an election year. Since it is likely there will be a continued stay in the case, gay marriage will not be legal in California for at least a few more years.
Read the comments over at the Volokh Law Blog here where they discuss the probable rationale by the Pro- Proposition 8 supporters and possible scenarios in the case.