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Why ProtectMarriage Didn't File Prop. 8 Review at Supreme Court

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By Stephanie Rabiner, Esq. on February 22, 2012 1:50 PM

California's Proposition 8 won't be heading to the Supreme Court just yet. Instead of appealing to the nation's highest court, the Protect Marriage coalition has asked a larger panel of the 9th Circuit to review the court's February 7th decision.

When asked about the Prop 8 rehearing, the group's general counsel explained that it would give "the entire 9th Circuit a chance to correct this anomalous decision by just two judges overturning the vote of seven million Californians."

In reality, the decision to request a rehearing is strategic in nature. In striking down Prop 8 as unconstitutional, the three-judge panel wrote a very narrow opinion that applies only in California. The dissent was also very weak in the eyes of both conservative and liberal pundits.

Protect Marriage therefore has very little to tempt the Supreme Court, according to scholars who spoke with the Associated Press. But if a Prop 8 rehearing results in a broader ruling or more persuasive dissents, Protect Marriage may have a better chance at getting to, and winning in, the Supreme Court.

It's also possible that Protect Marriage is not yet ready to take its chances in the Supreme Court. A rehearing by the 9th Circuit would delay such a decision by at least another two years. By that time, a justice may have been replaced, skewing the odds in the group's favor.

But again, it's also possible that public opinion will have also changed, and will instead favor same-sex marriage. Though not binding, public perception of moral issues is something the Court has traditionally considered.

A Prop 8 rehearing can go either way for supporters of the amendment. But first, a majority of the 9th Circuit's 25 judges must vote in favor of rehearing the case.

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