December 8, 2011
By Jacob Combs
Today, the 9th Circuit will hear oral arguments pertaining to two aspects of the Perry v. Brown trial that began last year. The first hearing, at 2:30 p.m. PST, will regard the appeal of Judge Ware’s decision to release the Prop 8 recordings taken during the initial trial. The second hearing, at 3:30 p.m. PST, regards the appeal of Judge Ware’s ruling to deny the proponents’ motion to dismiss Judge Walker’s decision because he did not disclose that he is in a long-term relationship with a man (shorter: Prop 8 backers said Judge Walker is gay so he is biased so his decision should be dismissed, Judge Ware denied their motion, Prop 8 backers appealed to the 9th Circuit). The 9th Circuit is not having any further hearings on the constitutional merits of the case itself or the issue of standing. Reply briefs regarding the California Supreme Court’s decision to grant the proponents standing under California law were due last Friday.
Some background and links:
- You can read more about what to expect from the hearings and where to find coverage of them in yesterday’s preview post.
- Courage Campaign Institute’s Arisha Hatch and Rick Jacobs will be liveblogging the hearings right here on Prop8TrialTracker.com, so you can check back just before 2:30 p.m. PST for coverage to start rolling in. I know many of you in the comments also plan to be there, so if there’s a tidbit you’d like to send in (a photo of the rally on the steps of the courthouse, an observation, etc.) send it on in to adam AT couragecampaign DOT org and we’ll get it up.
- Jennifer Roback Morse, the founder and President of the anti-gay Ruth Institute (who we encountered here while Arisha et al were following the NOM bus tour in California), will be liveblogging the trial for the National Organization for Marriage today. If you can handle the other side’s coverage of today’s hearings, you can check out NOM’s blog or Twitter feed.
- Many legal observers believe the 9th Circuit is likely to grant federal standing to the proponents of Prop 8 (enabling them to appeal Judge Walker’s decision) and go on to address the case on the merits. Ted Olson and David Boies, the attorneys representing the plaintiffs in Perry on behalf of the American Foundation for Equal Rights (AFER) are confident that the 9th Circuit will rule in our favor given the excellent case presented in the district court. It seems likely that Judge Ware’s decisions to release the tapes and the deny motion to vacate will be upheld as well. Olson will present arguments in favor of upholding Judge Ware’s decision to release the tapes, and Boies will present arguments in favor of upholding Judge Ware’s decision to deny the motion to vacate. Charles Cooper will argue both cases for the proponents of Prop 8.
- Of course, that brings up the question regarding next steps. There were a lot of interesting comments on this front in response to my piece on Tuesday about San Francisco’s brief to the appeals panel on the standing issue. The central question, of course, is whether or not our case will get to the Supreme Court. I agree with many of the commenters yesterday that the Supreme Court is probably not itching to take up our case. Everything depends on the 9th Circuit’s decision. The appeals panel could issue a narrow ruling that applied only to California or even only to the named plaintiffs in the case. It seems unlikely they will do so, however: if a ban on marriage equality is unconstitutional under the U.S. Constitution in California, why wouldn’t it be so in Nevada? When the case makes its way to the Supreme Court (which can of course deny to hear the case at all), the high court will have to make its own determination on the issue of standing. It seems feasible the Supreme Court would rule the proponents do not have standing on the issue and not take up the case, possibly limiting the effect of the ruling to California. Of course, a ruling at the Supreme Court affirming full federal marriage equality is our goal, but any outcome that upholds marriage equality even in a single state is a victory.
- Meanwhile, on the preview side of things, many questions have come in on how long it would take for the 9th Circuit to turn around a decision in Perry v. Brown after today’s opinion is issued, and the timeline from there. Lyle at SCOTUSBlog has a thought on the timeline for the case:
Although both sides in the historic lawsuit over the gay marriage ban have expected their dispute ultimately to reach the Supreme Court, it now seems quite unlikely that the case will move fast enough in federal court from here on to reach the Justices in time for a decision during the current Term. A case must be ready for the Justices to consider by no later than the end of January in order for it to be decided in the current Term, which is likely to end late next June. The Circuit Court is considering the Proposition 8 case on an expedited basis, but it is doubtful that it could act quickly enough, and that preliminary filings in the Supreme Court could be made soon enough, for the case to be ready within the next two and a half months.
- Over at the New Yorker, Jeffrey Toobin lists same-sex marriage in California as one of the top five legal stories in 2012. He predicts Prop 8 will be struck down, noting that marriage equality in New York and California will mean one-sixth of the U.S. lives in a state that allows for same-sex marriage.
- Elsewhere, Ari Ezra Waldman has an interesting meta piece at Towleroad on the implications of the Perry case overall.
- Like the coverage here at Prop8TrialTracker.com? Please consider making a small, end-of-year tax-deductible donation to Courage Campaign Institute to help cover expenses so we can keep being the #1 place for coverage of the trial.
- We’ll see you later today when the hearings happen.