Responding to the Feb. 21 decision by the proponents of Proposition 8 to seek expanded review from the U.S. Court of Appeals for the Ninth Circuit in the appeal of Perry v. Brown, the plaintiffs challenging California's Proposition 8 today told the court it should deny the proponents request because "the panel decision reflects a straightforward application of settled Supreme Court precedent and does not conflict with any decisions from this Court or any other court of appeals."
The three-judge panel that had been considering the case for more than a year reached its decision on Feb. 7 that U.S. District Court Judge Vaughn Walker was correct that Proposition 8 was unconstitutional. The appeals court, however, found it to be so on more narrow grounds than Walker had done originally.
Among other responses, the plaintiffs responded today to the proponents' main argument: that the narrow Ninth Circuit reasoning for the decision, applying the Supreme Court's decision in Romer v. Evans, was misapplied to Proposition 8. The plaintiffs' lawyers wrote:
Proponents claim that "[t]he root of the panel majority's error is its assertion that Romer turned on the timing of Colorado's Amendment 2 rather than its substance." But Romer's plain language belies Proponents' argument, demonstrating that the timing of the Colorado amendment was an important factor in understanding its substance and effect: Just like Proposition 8, Colorado Amendment 2 repealed provisions that previously advanced non-discriminatory treatment of gay men and lesbians, raising the specter that it was motivated by an improper purpose.
After the judges receiving a full briefing from the parties as to whether the matter should be reheard, all active circuit judges will vote as to whether an en banc rehearing should be held.
If a majority vote in the affirmative, the chief judge of the circuit, Alex Kozinski, and 10 other randomly selected circuit judges will hear the appeal.
READ the plaintiffs' filing: Perry-EnBanc-Plaintiffs.pdf
UPDATE @ 6:55P: The City and County of San Francisco also oppose en banc review.
Read the San Fran filing: Perry-EnBanc-SanFran.pdf