Supporters of California’s Proposition 8 law banning same-sex couples from marrying waited until the very last day to file a motion with the Ninth Circuit to appeal their case, effectively delaying a possible trip to the Supreme Court. Today, anti-marriage equality activists will request that the 2-1 decision again affirming Prop 8 is unconstitutional be heard en banc, before an eleven-member panel of Ninth Circuit judges — the Ninth Circuit Chief Judge, and 10 other randomly selected judges.
The Ninth Circuit does have the right to refuse to hear the case, should a majority of its judges agree that another attempt to turnover Judge Vaughn Walker‘s ruling is unnecessary or unwarranted.
Frankly, I’m sure legal scholars can explain this move better than I, but those who support the right of same-sex couples to marriage equality have a better chance at the Ninth Circuit than at the Supreme Court in its current form — being one of the most conservative courts in generations. Given that President Obama will likely win reelection, he will most likely also have the opportunity to change the face of the conservative court, thus making a win for same-sex marriage supporters later in the game more likely rather than earlier.
The other possibility is that the Ninth Circuit ruling that came down two weeks ago was written so narrowly that Prop 8 supporters might be concerned the Supreme Court could choose to not hear the case, and thus they would have no recourse whatsoever.
Of course, the Prop 8 supporters have mangled and bungled this case from day one, so we could if we wanted to, just chalk this up to two things: (1) They see the Prop 8 case as an opportunity to make money — how many millions have groups like NOM, the National Organization For Marriage received thanks to Prop 8?, and (2) they are poor decision makers and just don’t know when to give up the fight.
Frankly, my money’s on both.
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