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Ninth Circuit May Announce Prop 8 En Banc Decision Tomorrow

Judge Vaughn Walker (photo: Mike Linksvayer)

The announcement from the US Court of Appeals for the Ninth Circuit that they will have an announcement tomorrow has stirred some speculation about what is to be announced. JoeMyGod:

KQED’s Scott Shafer said this is almost surely the decision on whether to rehear the case en banc. An en banc panel is made up of 11 judges, chosen at random from the circuit. If the 9th Circuit denies the request, Prop 8 supporters will almost certainly ask the United States Supreme Court to hear the case. Proponents of Prop 8, California’s same-sex marriage ban, asked the 9th Circuit for the en banc review in February, after a ruling by a three-judge panel upheld Judge Vaughn Walker’s 2010 decision striking down the law as unconstitutional.

Courage Campaign’s Prop 8 Trial Tracker reminds us of the state of play:

Here’s where things stand right now: the Ninth Circuit, in a decision by a three-judge panel has affirmed Judge Walker’s decision striking down Proposition 8 as unconstitutional, albeit on narrower grounds than he did. Then, the proponents of Proposition 8 asked the Ninth Circuit for an en banc rehearing, to vacate their decision and put the case before a larger panel of judges on the Ninth Circuit. We have been waiting for the judges to decide whether they will grant the en banc rehearing and start the whole process over, or let the three-judge panel’s decision written by Judge Reinhardt stand.

Either the narrow Reinhardt decision will be affirmed tomorrow by a denial of the en banc request from the Prop 8 supporters, or that decision will be thrown out and a new, larger panel of 11 judges will re-hear the appeal and issue its own decision.

If the former happens, we’ll see an immediate appeal to the US Supreme Court by the supporters of Prop 8 — will the stay of Judge Walker’s decision nullifying Prop 8 remain in place? Stay tuned.

If a new, larger en banc panel will hear the appeal, the possibility exists that the Ninth Circuit could issue a more expansive ruling than Reinhardt’s — or they could overturn Walker’s decision completely. Risk abounds.

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Teddy Partridge

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