Ninth Circuit Order: Denial of Petition for Rehearing En Banc in Prop. 8 case

The US Ninth Circuit Court of Appeals announced Tuesday that an 11-judge panel would not hear an appeal of a decision that struck down California's ban on gay marriage.

The Court order says:

(Dissent by Judge O'Scannlain, Concurrence by Judge Reinhardt) A majority of the panel has voted to deny the petition for rehearing en banc. Judge N.R. Smith would grant the petition. The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the non-recused active judges in favor of en banc consideration. Fed. R. App. P. 35. The petition for rehearing en banc is DENIED. The mandate is stayed for ninety days pending the filing of a petition for writ of certiorari in the Supreme Court. If such a petition is filed, the stay shall continue until final disposition by the Supreme Court.

Rather than appeal to the US Supreme Court, the Advocacy-group Protectmarriage.com anti-same-sex marriage group elected instead to request a panel of 11 Ninth Circuit judges – known as an en banc hearing – to review the merits of the case.

On 07 February 2012, the 9th Circuit Court of Appeals upheld 2–1 the judgment of former Chief US Judge Vaughn Walker, in the matter of Perry v. Brown, case numbers 10-16696 and 11-16577 that Proposition 8 approved by voters in November 2008 and banning same-sex marriage was unconstitutional. The Court denied the motion to vacate the lower court ruling.

In denying the request, called an en banc rehearing, then the Proposition 8 proponents have 90 days to consider whether to appeal the case to the Supreme Court. In the meantime the decision is stayed, or on hold, during this time.

The refusal to review the case en banc means that the judgment finding that Proposition 8 was unconstitutional stands, and in the absence of an appeal to the US Supreme Court, same-sex couples would once again be able to marry in California.

Order: Kirsten M Perry & Ors v. Edmund G Brown 10-16696 93.74kb, 03 JUN 12

(GayLawNet 06 June 2012 — David Allan
Web: www.gaylawnet.com)