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Anti-gay-marriage forces plan Prop. 8 strategy after legal defeat

February 9, 2012 |  8:01 am

Anti-gay-marriage forces were charting their next move this week after a three-judge federal appeals court panel ruled that Proposition 8, the 2008 California ballot measure banning same-sex unions, is unconstitutional

Anti-gay-marriage forces were charting their next move this week after a three-judge federal appeals court panel ruled that Proposition 8, the 2008 California ballot measure banning same-sex unions, is unconstitutional.

ProtectMarriage, the Christian conservative sponsor of Prop. 8, is expected to announce next week whether to ask a larger panel of the U.S. 9th Circuit Court of Appeals to reconsider Tuesday's ruling, a decision that could postpone U.S. Supreme Court review for months.

Andy Pugno, general counsel for ProtectMarriage, noted that a judge on the 9th Circuit might independently call for fellow jurists to vote on whether to review the ruling. Whether such a vote would gain majority support remained doubtful, law professors said.

A rehearing would permit the 9th Circuit to reframe the legal case and deliver a ruling that would affect marriage laws in other states, the outcome preferred by ProtectMarriage's supporters, Pugno said. Tuesday's ruling was limited to circumstances in California and would not affect other states.

A ruling by a larger 9th Circuit panel also "would raise the profile of the case and increase the attention the Supreme Court would give to it," Pugno said.

But he cautioned that his group's legal team was still debating strategy. In the past, ProtectMarriage lawyers have said they wanted to get to the Supreme Court as quickly as possible. "Everybody knows the Supreme Court is almost certain to review this case," he said.

Democratic appointees outnumber Republican appointees on the 9th Circuit, UC Irvine Law School Dean Erwin Chemerinsky observed. "I have no doubt that there is a core group of conservatives that will want to go" for reconsideration, he said. "But I can't imagine they will have the votes."

Chemerinsky said he asked his law students Wednesday whether they would recommend that ProtectMarriage seek a rehearing in the 9th Circuit or go to the Supreme Court. "They split," he said.

UC Davis constitutional law professor Vikram Amar said it made sense that ProtectMarriage would want a 9th Circuit review, in order to get "two bites of the apple."

If a majority of active circuit judges voted to rehear the case, a panel of 11 judges would be randomly drawn to decide it. Their decision could then be appealed to the Supreme Court.

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-- Maura Dolan

Photo: Demonstrators for and against Proposition 8 square off. Credit: Don Bartletti / Los Angeles Times

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