The next step in the Prop 8 case has reared its ugly head, with the proponents of Prop 8 filing paperwork to have the Ninth Circuit reconsider the ruling by the three judge panel.
The panel majority erred in breaking with the uniform and binding precedent upholding the constitutionality of laws adopting the traditional definition of marriage, and the Court, sitting en banc, should rehear this profoundly important case.
The panel majority concluded that the Supreme Court's decision in Romer v. Evans directly "governs" and "controls" this case because it struck down a "remarkably similar" constitutional amendment—Colorado's Amendment 2. This conclusion, however, rests on a patently implausible reading of Romer.
[I]n declaring a state constitutional right to same-sex marriage in the Marriage Cases, the California Supreme Court not only overturned the statutory will of the People in Proposition 22, it also refused to defer its decision until the constitutional will of the People could be expressed on Proposition 8 at the ballot. And that decision, according to the panel majority in this case, rendered the will of the People irrelevant in any event; for once the California Supreme Court redefined marriage to include same-sex couples, the People of California were powerless, as a matter of federal constitutional law, to exercise their reserved right to [amend their state constitution.]
The move means a larger panel of judges from the Ninth Circuit will likely hear the case and present their judgment as to the Proposition's constitutionality.