Santorum’s Weird Obsession With Your Sex Life »« Badass Quote of the Day

Prop 8 Backers File for En Banc Rehearing

The group defending California’s Prop 8 in court have filed a request for an en banc rehearing with the 9th Circuit Court of Appeals. Some legal experts thought that was unlikely, that they would appeal directly to the Supreme Court instead. It is rare that an en banc rehearing is granted, but no more rare than the Supreme Court agreeing to hear a case. Here’s an amusing line from the article:

The 2-1 decision found: “Although the Constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least a legitimate reason for the passage of a law that treats different classes of people differently. There was no such reason [for Proposition 8].”

Lead counsel Charles J. Cooper, with the Cooper & Kirk law firm, said, “The idea that Californians – of all people – sought to ‘send a message that gays and lesbians are of lesser worth,’ as the two-judge decision claims, is simply absurd. Voters from all walks of life, political parties, races, and creeds supported Proposition 8.”

And we got both kinds of music here, country and western.

Comments

  1. Chiroptera says

    Lead counsel Charles J. Cooper, with the Cooper & Kirk law firm, said, “The idea that Californians – of all people – sought to ‘send a message that gays and lesbians are of lesser worth,’ as the two-judge decision claims, is simply absurd.

    Huh. That message is what I got from the pro-8 side. I think a plain reading of the justifications by the pro-8 side will lead one to the conclusion that this is exactly the message they want to send.

  2. dingojack says

    My message to lesbians and gays in California: if they don’t want you, move to somewhere that does.
    I’m sure the multi-million dollar entertainment industry focused in Hollywood could survive the mass movement away, right?
    Dingo
    —–
    Before Hollywood, the centre of movie-making was NY

  3. says

    “The idea that Californians – of all people – sought to ‘send a message that gays and lesbians are of lesser worth,’ as the two-judge decision claims, is simply absurd. Voters from all walks of life, political parties, races, and creeds supported Proposition 8.”

    Is this attorney familiar with the phrase “non sequitur”? I thought being familiar with logical fallacies was part of the education for being an attorney, or at least that’s the impression I got from the attorney who lives next door. That the people who supported Prop 8 come from different demographic groups is not in any way make absurd the claim that by supporting that bill they send that message. I hope they continue to argue this poorly moving forward.

  4. frankb says

    Lead counsel Cooper is doing one of those spin doctor things, telling us to draw the diametrically opposite conclusion from a set of facts or statements. When there is no real justification for Prop 8, what else can he do to earn his fee.

  5. The Lorax says

    I’m sure they can’t be terribly bright to continue this, but one has to assume that they aren’t entirely stupid. Everyone thought they would appeal directly to the Supreme Court, and here they’re asking for en banc; does this mean they think they have a better chance here than the Supreme Court? Is that thinking based on evidence? This could still turn out badly, even though the wording was so direct and obvious.

  6. Scott F says

    The whole Prop 8 thing wasn’t about gays (per se) or the law (per se). Prop 8 was a dog whistle to get The Base(tm) to turn out and vote in droves. The more episodes of Victimhood of the Majority Christians they can generate, the more money they can rake in and the more votes they churn out. Anything to drag out the show until the November election.

    “Look! Look! All the evil judges are against you. Send us more money. Ignore that improving economy. Vote for Us, not Them.”

  7. Phillip IV says

    Voters from all walks of life, political parties, races, and creeds supported Proposition 8.

    Yeah, Richard Nixon couldn’t possibly have been a racist, because he garnered 5% of the African-American vote. Conclusive proof.

  8. D. C. Sessions says

    Everyone thought they would appeal directly to the Supreme Court, and here they’re asking for en banc; does this mean they think they have a better chance here than the Supreme Court?

    No, because either way it ends up in Washington. However, there are two reasons that come immediately to mind for this approach:
    1) They run out the clock. Even aside from possible changes on the Court, this keeps Prop 8 in effect while the process drags out, and adds a bit of weight to efforts in other States.
    2) The case record you bring to the USSC matters. If the Ninth en banc either overturns the previous decision or goes much farther in affirming it, they can arrive in Washington with a better story to tell to the USSC and perhaps have grounds for remand.

  9. eigenperson says

    I think they’re asking for en banc rehearing because they expect a few conservative judges to write a dissent from denial of rehearing en banc, which they hope will be persuasive to Anthony Kennedy (and the rest, just in case).

  10. says

    Lead counsel Charles J. Cooper, with the Cooper & Kirk law firm, said, “The idea that Californians – of all people – sought to ‘send a message that gays and lesbians are of lesser worth,’ as the two-judge decision claims, is simply absurd.

    Funny, that’s the message pro-ban people have been screaming whenever I bothered to listen in. It’s been consistent for decades.

  11. Hercules Grytpype-Thynne says

    I thought being familiar with logical fallacies was part of the education for being an attorney

    Because you can’t deploy them effectively unless you’re familiar with them.

  12. jamessweet says

    I’m sure they can’t be terribly bright to continue this, but one has to assume that they aren’t entirely stupid. Everyone thought they would appeal directly to the Supreme Court, and here they’re asking for en banc; does this mean they think they have a better chance here than the Supreme Court? Is that thinking based on evidence? This could still turn out badly, even though the wording was so direct and obvious.

    I correctly predicted they would file for an en banc. My take on it is this: The 9th Circuit’s opinion, authored by Reinhardt, through a monkey wrench into their plans. It is very narrow, and written in a way that it will be an appealing option for SCOTUS to simply refuse outright to hear the case. And even if the court does take it, the bad guys’ chances are very poor given the Reinhardt opinion.

    If the 9th Circuit had made a much more sweeping ruling, say, arguing to apply heightened scrutiny and saying that marriage equality was constitutionally guaranteed, then a) SCOTUS almost certainly would have taken the case, and b) there’s a decent chance it would have been reversed in a 5-4 vote in favor of the bigots.

    I think the en banc request is a long shot gamble to get a more sweeping ruling. It doesn’t necessarily have to go the Defendant-Intervenors’ way in order to benefit them: If the en banc panel hands down an opinion establishing marriage equality as a constitutional right, as I described above, then counter-intuitively, the baddies’ odds at SCOTUS actually improve.

    I don’t think anybody thinks the en banc court is at all likely to reverse the ruling… but there’s at least a minuscule chance that they’ll amplify it, and that benefits the haters.

  13. says

    I think they are playing “what if” Obama is not reelected. If he isn’t, the challenge to PropH8 might not even have a chance in hell of surviving the Supreme Court by the time it gets there.

  14. cottonnero says

    What jamessweet said. This is an onside kick with the haters down 4 with a minute and a half to play.

  15. jamessweet says

    I think they are playing “what if” Obama is not reelected. If he isn’t, the challenge to PropH8 might not even have a chance in hell of surviving the Supreme Court by the time it gets there.

    The reason I don’t think this is because, up until the Reinhardt opinion came down, they were saying (and we have no reason to doubt they were actually being honest in this case) that they wanted to get to the Supreme Court as quickly as possible. In fact, they were saying as much virtually right up to the day they petitioned for en banc.

    I think something changed, and that “something” was that the Reinhardt opinion was so narrow that it left open the serious possibility of SCOTUS not even granting cert.

    The delay may be a secondary benefit for them, but up until very recently they seemed to consider getting the case heard by the Supremes to be a higher priority than prolonging the legal fight.

  16. Chiroptera says

    jamessweet, #12: My take on it is this: The 9th Circuit’s opinion, authored by Reinhardt, through a monkey wrench into their plans.

    What? Have the pro-8 side managed to find lawyers competent enough to understand the opinion?

  17. jnorris says

    Yes appeal to the whole circuit court because nothing takes away the sting of being bitch slapped by a few judges like getting your butt kicked by all nine.

  18. Rieux says

    I find the decision to file an en banc petition confusing, but I guess James @12 must be right.

    If I were an anti-gay partisan calling the shots on the pro-Prop 8 side in this case, though, I’d go straight to the cert petition, because that sharply increases the chances that something will happen in this case at the Supreme Court between now and November. If (as seems very possible) that something is a denial of cert, that provides me an opportunity to bash Obama and the “activist judges” on the Court, in the hopes of increasing right-wing turnout in the Presidential (and Senate) election.

  19. says

    People seem to think that all Californians are Birkenstock-wearing, pot-smoking, and “friends of long-haired hippie-type pinko fags.” (Thanks Charlie Daniels.)

    Vast swaths of California could be mistaken for Alabama (albeit much hotter). Kern County in the Central Valley voted for Prop 8 by a 75-25 ratio. The part of California that keeps it a blue state are the counties from Los Angeles up the coast to San Francisco. Every place else is generally a right wing area, though the population is relatively low. In fact, Los Angeles county supported Prop 8.

    My point is that the right wing lawyers are trying to make it seem that that a broad portion of the California electorate voted for it. The fact is that the right-wing part of the state went solidly for Prop 8, and LA county underperformed relative to the vote for Obama.

    Prop 8 was discriminatory, and it wasn’t supported by a broad coalition of Californians, unless we consider that coalition to mean religious nut jobs who lied in advertising. The Harvey Milk advertisement they used was particularly obnoxious.

    Californians woke up the next morning and thought, “wait, we didn’t mean to do that.” If the vote were held today, it would match the 2000 election results on the question, which was about 60-40 pro. And what happened in 2010? Despite the Republican landslides throughout the country, Democrats rule California from top to bottom. Democrats will also probably gain 5-7 seats in the 2012 Congressional elections making up for the Republican gerrymandering elsewhere.

    This whole issue just sucks.

  20. Michael Heath says

    I get why the prop 8 proponents asked for an en banc hearing per jamessweet’s rationale. I don’t get why the 9th Circuit would take the bait.

Leave a Reply