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Perry v. Brown Plaintiffs Oppose En Banc Rehearing

By Robyn Hagan Cain on March 02, 2012 | Last updated on March 21, 2019

Need further proof that the Prop 8 litigants can't agree on anything?

In February, the Ninth Circuit Court of Appeals decided in Perry v. Brown that California Prop 8 was unconstitutional. Two weeks later, Prop 8 proponents ProtectMarriage asked the Ninth Circuit for en banc rehearing of the case.

Now, the Prop 8 opponents are asking the Ninth Circuit Court of Appeals to deny rehearing.

ProtectMarriage asserted five pro-Prop 8 arguments in its February 21 request for en banc rehearing:

  • The panel misapplied Romer v. Evans.
  • The decision conflicts with Crawford v. Board of Education.
  • The decision conflicts with all jurisprudence regarding federal constitutional challenges to the traditional definition of marriage.
  • The holding that Prop 8 does not reasonably relate to the state's interest in procreation and childrearing conflicts with jurisprudence and contravenes the principles of rational-basis review.
  • Prop 8 is rationally-related to other state interests.

Yesterday, the Perry plaintiffs and the City of San Francisco told the Ninth Circuit Court of Appeals that it should deny ProtectMarriage's petition because "the panel decision reflects a straight forward application of settled Supreme Court precedent and does not conflict with any decisions from this Court or any other court of appeals," reports Metro Weekly.

Specifically, the Perry plaintiffs point to ProtectMarriage's contention that the three-judge panel misapplied Romer v. Evans. They maintain that the Ninth Circuit reached the correct conclusion because Colorado Amendment 2 -- the law at issue in Romer -- repealed provisions that previously advanced non-discriminatory treatment of gay men and lesbians, just like California Prop 8.

Do you think the Ninth Circuit Court of Appeals will grant the en banc rehearing, or will it step aside to make way for the inevitable Supreme Court challenge?

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