Proposition 8 supporters have elected to seek an en banc review by the Ninth Circuit Court of Appeals of the recent decision finding the California prohibition of gay marriage as unconstitutional:

The backers of California’s ban against same-sex marriage have asked the 9th U.S. Circuit Court of Appeals to review a recent ruling that found voters did not have the right to adopt the antigay law. In a 2-1 decision released February 7 a three-judge appellate panel upheld the 2010 ruling by now-retired U.S. District Court Judge Vaughn Walker that the constitutional amendment voters passed in 2008, known as Proposition 8, is unconstitutional.

Lawyers for Protectmarriage.com, the group that succeeded in having voters adopt Prop 8, filed their request with the federal appellate court Tuesday, February 21. The move was expected and means Prop 8 will remain in effect for the time being. They are seeking what is known as an en banc review, in which the chief judge of the appellate court and 10 other judges of the 9th Circuit assigned at random reconsider the case.

A majority of the 9th Circuit’s 25 judges in regular active service must vote to grant the request. According to the court’s rules published online, en banc reviews are “not favored” and “ordinarily will not be ordered” unless there is a need to “secure or maintain uniformity of the court’s decisions” or the case raises “a question of exceptional importance.”

In their 61-page request with the court, Prop 8’s attorneys contend that “the panel majority’s decision conflicts with decisions of the United States Supreme Court” as well as the 9th Circuit. They also contend that an important question is raised by the case: if the 14th Amendment to the United States Constitution prohibits a state from limiting marriage to opposite-sex couples. “The panel majority’s holding that California must recognize same-sex relationships as marriages conflicts not only with the binding authority cited above, but also with the decisions of every other state and federal appellate court to address this question,” states the petition for review. It goes on to state that, “The panel majority erred in breaking with the uniform and binding precedent upholding the constitutionality of laws adopting the traditional definition of marriage, and the Court, sitting en banc, should rehear this profoundly important case.”

They also say the lawsuit, known as Perry v. Brown , raises another pertinent question: whether Walker should have recused himself from hearing the lawsuit because he is gay and in a committed relationship. Walker never revealed his sexual orientation while overseeing the 2010 trial in

All three of the appellate panel judges ruled this month that Walker did not have to disclose the information or recuse himself from hearing the case. But Prop 8’s attorneys continue to claim that Walker should not have heard the case because it directly benefits himself and his partner’s ability to marry. “This appeal ought to be resolved without reaching the merits of the constitutional questions it presents, because the district court judge whose judgment is under review was disqualified from presiding. His judgment thus must be vacated and the case remanded to the district court for decision by a new judge,” they contend in their petition for review.

Lawyers for the two same-sex couples who filed the lawsuit as well as the San Francisco City Attorney’s office, which is a party to the case, will have a chance to respond to the en banc request prior to the appellate court’s decision to accept it or not. In a statement issued late Tuesday afternoon, the attorneys made clear they are opposed to the request for review. “We are ready to defend our victory whatever path this case takes,” stated plaintiffs’ attorney Theodore J. Boutrous Jr. “Because our plaintiffs have the right to get married, which both the Federal District Court and 9th Circuit Court of Appeals vindicated, we oppose en banc review and will seek to bring that fundamental right to reality at the earliest possible time for the tens of thousands of Californians who are being denied basic justice, due process and equality.” And they called the renewed complaints about Walker a “baseless attempt to impugn [his] reputation.”

Should the court agree to en banc review, then the names of the judges who will hear the matter would be drawn by the clerk or a deputy clerk of the court in the presence of at least one judge and shall occur on the first working day following the date of the order granting review.
After the en banc court is chosen, the judges on the panel then decide whether to conduct another oral argument session or ask for additional briefing. If there is to be oral argument, the chief judge will schedule the date, time, and location.

If there is no call for oral argument then the chief judge will schedule a conference of the en banc court. The entire process can take at least six months, meaning a decision could come as early as August.

If the appellate court rejects the en banc request, Prop 8’s backers can then ask the U.S. Supreme Court to review the case. Both sides have repeatedly said they expect that the case will land before the nation’s highest court.

The lawsuit stems from the fight over marriage equality that former San Francisco Mayor Gavin Newsom jump-started in 2004 when he ordered city officials to marry same-sex couples. That action paved the way for City Attorney Dennis Herrera to file a historic lawsuit against the state seeking marriage rights for LGBT people.

The state Supreme Court ruled in May 2008 that California’s anti-gay marriage statutes were unconstitutional, opening up a four-month window that summer and early fall where thousands of same-sex couples tied the knot. Voters by a slim majority overturned that decision at the voting booth that fall, a crushing defeat for the state’s LGBT community.

Shortly after the state Supreme Court upheld the voters’ right to pass Prop 8, the group American Foundation for Equal Rights filed the federal lawsuit in the spring of 2009 with the high-profile legal team of Theodore Olson and David Boies. The lawsuit is named after Berkeley resident Kristin Perry, who has been with her partner, Sandra Stier, for 12 years. The other couple is Los Angeles residents Paul Katami and Jeff Zarillo, who have been together 11 years.

The 9th Circuit appellate decision is narrow in scope, so if it were upheld, it would only mean that California could once again begin marrying same-sex couples. And presumably it would mean that voters in states covered by the 9th Circuit could not rescind marriage rights for gays and lesbians at the ballot box.