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February 09, 2012

Prop 8 lawyers debating what to do next

Will the Prop 8 defenders who lost the Perry case before the Ninth Circuit panel seek en banc review or head straight to the Supreme Court? They have until February 21 to file a motion for rehearing en banc; if that date passes without such a motion, we can wait for the cert petition.  According to this LA Times report, it sounds like the decision is not yet made:

Andy Pugno, general counsel for ProtectMarriage, noted that a judge on the 9th Circuit might independently call for fellow jurists to vote on whether to review the ruling. Whether such a vote would gain majority support remained doubtful, law professors said.

A rehearing would permit the 9th Circuit to reframe the legal case and deliver a ruling that would affect marriage laws in other states, the outcome preferred by ProtectMarriage's supporters, Pugno said. Tuesday's ruling was limited to circumstances in California and would not affect other states.

A ruling by a larger 9th Circuit panel also "would raise the profile of the case and increase the attention the Supreme Court would give to it," Pugno said. But he cautioned that his group's legal team was still debating strategy. In the past, ProtectMarriage lawyers have said they wanted to get to the Supreme Court as quickly as possible.

Courage Campaign says that "signs point to" ultra-conservative Judge Diarmuid O’Scannlain as being the judge interested in independently calling for an en banc hearing.

Meanwhile, back in plaintiffs' camp, it appears from MetroWeekly that Ted Olson has totally drunk the kool-aid:

One of the lawyers fighting Proposition 8 said that [yesterday's decision] of the U.S. Court of Appeals for the Ninth Circuit in Perry v. Brown striking down the initiative makes it "somewhat less likely" that the U.S. Supreme Court would hear an appeal of the case, while his co-counsel was more ambitious, suggesting that the ruling could have a ripple effect of advancing marriage equality in Georgia and Arkansas.

On a conference call organized by the American Foundation for Equal Rights, which brought the case, attorney David Boies told reporters, "I think the grounds do make it somewhat less likely that the Supreme Court will take it."...

"With a precedent like Romer that so squarely fits," Boies asserted that the outcome in the Ninth Circuit's opinion was solid. To that end, Boies added: "The [Supreme] Court might not want to take this issue on on those facts and might want to wait for a case that raises the more general issue."...

[By contrast, Olson said,] "Our opponents are going to say, 'That didn't decide what goes on in Georgia. That didn't decide what goes on in Arkansas.' But we're talking about the fundamental right of individuals to enjoy the relationship of marriage. This decision talks in terms of how important and fundamental that is."

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