Today, the Ninth Circuit Court of Appeals announced that it will not rehear the appeal in Perry v. Brown, the federal case challenging the constitutionality of Prop 8. That means that one of two things happen next: Either the antigay forces behind Prop 8 lay down their limited weapons and Judge Vaughn Walker’s ruling ordering California to perform marriages for same-sex couples goes into effect (after 90 days) or, more likely, proponents take the case to the Supreme Court.
At issue was the proponents’ petition for an en banc rehearing of the appeal, the appeal that resulted months ago in an incremental, yet favorable decision in favor of marriage recognition for California’s gay community. An en banc (French for “on [a] bench”) rehearing is essentially a redo of the appeal before all — or, in this case, more — judges on a court.
First, a majority of the judges on a court must vote in favor of rehearing; then, a majority of those empaneled (the Ninth Circuit uses 11 judges; small circuits simply use the entire bench) would have to come to some decision, either affirming or rejecting the decision of the 3-judge panel. Here, both a majority of the original panel and a majority of the remaining judges decided not to rehear the case.
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