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SAN FRANCISCO – Another big moment could occur today regarding the Proposition 8 case.
Today is the last day that proponents of Prop 8 can petition the Ninth Circuit Court of Appeals for an expanded review of the appeals court’s ruling on Feb. 7 that upheld a lower court ruling that the California law was unconstitutional.
Legal experts seem split on what might occur today. Some think that the proponents will seek the en banc hearing by a larger panel of appeals court judges, because it would further delay any settling of the marriage-equality case. Others think that the proponents are eager to get the case before the U.S. Supreme Court, where they hope that the 5-4 conservative bent of the high court will strike down the appeals court ruling.
If the proponents decide against filing for the en banc hearing, the decision by the three-judge Ninth Circuit panel will be the final ruling at the appeals-court level.
Another big question looms over the case: What about the stay issued in the Feb. 7 ruling?
Jacob Combs, writing for the Prop 8 Trial Tracker, explains:
In its ruling on February 7, the 9th Circuit wrote that the mandate (that is, the official notice of the decision) will not go into effect until 7 days after the deadline for a rehearing petition expires, or 7 days after a rehearing is denied. What that means is that the 9th Circuit’s stay on Judge Walker’s ruling striking down Proposition 8 will be lifted 7 days after tomorrow’s deadline (February 28), should the proponents choose not to file for rehearing. If the proponents do file for a rehearing, the stay is automatically extended until that rehearing is either denied or it is accepted and then ruled on, both of which could take some time.
Even if the proponents do not file for a rehearing tomorrow, however, it’s important to note that it is only the 3-judge panel’s initial stay that will expire on the 28th. Regardless of what they do tomorrow, the proponents have a full 90 days following the decision to seek Supreme Court review. Should they choose not to petition for rehearing, the proponents could still request an extension of the stay from the 9th Circuit pending Supreme Court review. Should that request be denied, they could petition the Supreme Court. Justice Kennedy, who is responsible for petitions from the 9th Circuit, could then either grant a stay on his own or refer it to the full court.
The question of when gay and lesbian couples in California can again legally marry is still very much up in the air.
Stay tuned to San Diego Gay & Lesbian News today for any breaking news involving the Prop 8 case.