Prop. 8 Backers Seeking Ninth Circuit En Banc Review

(Eugene Volokh)

The backers of California's anti-same-sex-marriage Prop. 8 are apparently about to ask for en banc review by the Ninth Circuit. I had thought that they'd go straight to the Supreme Court, since (1) the chances of their getting en banc review in the Ninth Circuit, and then winning such review before a 11-judge panel that the Circuit selects for such purposes, would be pretty low, and (2) I would think that they would like to make same-sex marriage an issue at the federal election level this Fall, something that would be likelier if the Supreme Court decides before the election to hear the case. And I think that, if they just directly petitioned the Court, the Court would have indeed agreed to hear the case. But the Prop. 8 lawyers, who are very knowledgeable on such matters, have decided differently — it will be interesting to see how and how quickly the case progresses from here.