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ProtectMarriage Asks for Prop 8 En Banc Rehearing

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By Robyn Hagan Cain on February 21, 2012 3:17 PM

We all knew that the Ninth Circuit Court of Appeals Prop 8 ruling wasn't the end of the Perry v. Brown battle; the question, however, was whether ProtectMarriage would take its fight to the full Ninth Circuit, or if it would skip an en banc rehearing request and head straight to the Supreme Court.

We got our answer Monday.

Charles Cooper, the lead attorney for the Prop 8 proponents, said ProtectMarriage will be asking the Ninth Circuit Court of Appeals for an en banc rehearing of the three-judge panel decision holding that Prop 8 is unconstitutional, reports Metro Weekly. If the court grants the request, Chief Judge Alex Kozinski and 10 randomly selected judges from the Ninth Circuit would hear the case under the court’s limited en banc rehearing rule.

Virtually every media outlet covering the en banc rehearing request has reached the same conclusion: a Ninth Circuit rehearing would effectively prevent the Supreme Court from taking up the case before the presidential election. Adam Liptak at The New York Times has suggested that rehearing could result in a bigger loss for ProtectMarriage, (as in a constitutional right to marry, rather than the narrow equal protection argument that Judge Stephen Reinhardt asserted), which might compel the Nine to grant certiorari in the case.

We can think of another reason why the Prop 8 proponents might want to delay a Supreme Court appeal: Kamala Harris.

Tom Goldstein of SCOTUSblog suggested last week that Justice Ginsburg will retire if President Obama wins reelection, and that California Attorney General Kamala Harris is the “ideal” candidate to replace Justice Ginsburg.

Let’s take that idea one step further. If Obama wins, there’s a chance that Harris could be one of the Nine by the time the Perry v. Brown reaches the Supreme Court. If Harris is on the Court for the Perry v. Brown review, she would probably recuse herself from hearing the case. (Harris refused to defend Prop 8 as Attorney General, prompting the standing controversy that the California Supreme Court resolved in November so objectivity, especially in this recusal-heavy climate, would be a hard sell.)

Convincing an eight-judge panel that’s missing a liberal vote seems like a good start for Protect Marriage.

We recognize that this theory incorporates a number of variables that may never come to fruition, but think about it from ProtectMarriage’s position: Prop 8 has already been declared unconstitutional. What do they have to lose by delaying the case in en banc rehearing and hoping for a SCOTUS shakeup?

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