Sign Up to Receive Email Action Alerts From Issa Exposed
×

Top 10 questions on next steps in the Prop 8 trial

February 8, 2012

9th Circuit Court of Appeals Prop 8 trial

By Adam Bink

After major rulings like yesterday, there are always many questions that surface in the comments here at Prop8TrialTracker.com and elsewhere on what this means and what next. The Prop8TrialTracker.com staff took a look at many of those questions, consulted with our friends in the legal community and put together a list for your perusal (and if we’ve missed any, feel free to add in the comments and we’ll do our best to answer them).

1. Everyone says the losing side (Prop 8′s proponents) can now appeal to the 9th Circuit en banc. I thought the 9th Circuit just ruled?

A randomly selected 3-judge panel made up of 9th Circuit judges just ruled 2-1 that Prop 8 is unconstitutional. But the 9th Circuit is made up of several dozen judges. En banc is a term referring to when all the judges hear a case. When it comes to the 9th Circuit, if the request for an en banc hearing is granted, 11 judges from the 9th Circuit will convene to take a look at the case, which may involve a hearing.

2. What’s the timeline for that?

It usually takes months for the en banc reconsideration to be completed. If a party asks for en banc review, the request is sent to all of the active judges on the court.  Memos are often exchanged between the judges before a vote takes place on whether to take the case en banc.  If they take it, names are drawn for the panel and a whole new series of briefs are usually filed, which takes a few more months.  Then they hold oral arguments and issue a decision.  It is really almost like starting the whole appeal all over again.

3. What happens if the 9th Circuit doesn’t take an en banc appeal?

The losing side can appeal to the U.S. Supreme Court.

4. If the 9th Circuit takes the case en banc and they rule, what happens after they rule?

The losing side can appeal to the U.S. Supreme Court.

5. Can the losing side from the 9th Circuit panel decision just go straight to the Supreme Court and not appeal to the 9th Circuit en banc at all?

Yes.

6. Will the Supreme Court take the case?

There are many different opinions about that. Many legal experts note the limited scope of yesterday’s 9th Circuit panel decision. Note that the Court explicitly said it was not making a ruling on same-sex marriage in general, but instead ruled on this one constitutional amendment (Proposition 8, passed by voters in 2008). In fact, Judge Reinhardt, writing for the majority, wrote:

Whether under the Constitution same-sex couples may ever be denied the right to marry, a right that has long been enjoyed by opposite-sex couples, is an important and highly controversial question. It is currently a matter of great debate in our nation, and an issue over which people of good will may disagree, sometimes strongly. Of course, when questions of constitutional law are necessary to the resolution of a case, courts may not and should not abstain from deciding them simply because they are controversial. We need not and do not answer the broader question in this case, however, because California had already committed to same-sex couples both the incidents of marriage and the official designation of ‘marriage,’ and Proposition 8’s only effect was to take away that important and legally significant designation, while leaving in place all of its incidents. This unique and strictly limited effect of Proposition 8 allows us to address the amendment’s constitutionality on narrow grounds.

Note also that the Court did not apply its ruling to the states covered in the 9th Circuit to say “all of the laws banning same-sex marriage do not comply with the Equal Protection clause of the 14th Amendment to the U.S. Constitution and are therefore unconstitutional.” Instead, the 9th Circuit panel limited the scope of its ruling to Prop 8.

What does that mean with respect to the Supreme Court? It means, according to many legal experts, that the Court is less likely to take the case. That combined with the fact that over 99% of all cases filed for Supreme Court review are rejected for consideration means the Court may not take the case, in which case, yesterday’s 9th Circuit panel decision (or the decision of a full en banc review panel, if there is one) would stand. Of course, other legal experts believe the Court would take up the issue.

7. So what does that mean for same-sex marriage in California if the Supreme Court does not take the case?

If the Supreme Court does not take the case and there is no 9th Circuit en banc review (or there is a ruling from en banc review that Prop 8 is unconstitutional along the lines of yesterday’s decision), yesterday’s decision would become final, Prop 8 would fall, the stay would be lifted and same-sex couples in California can marry once again.

8. What’s the timeline for the Supreme Court?

The losing party has up to 90 days to ask the Supreme Court to take the case. It then usually takes a couple of months at least for the Supreme Court to decide whether to take a case. The party opposing Supreme Court review gets to file a brief saying why the Supreme Court should not take the case, and amicus briefs can be filed on both sides as well.  Also, the Court does not do any business from the end of June to September. If all that briefing is not completed before the Court’s summer recess begins, then it will not even consider whether to take the case until it comes back in September. That all sets up for a decision in 2013 at the earliest.

9. Is there any indication of how the Supreme Court might rule?

Many legal minds have remarked how both Judge Walker’s decision as well as Judge Reinhardt’s opinion yesterday were along the lines of Justice Kennedy’s arguments with respect to cases like Romer v. Evans, the landmark case that struck down Amendment 2 in Colorado. Attorney Adam Bonin, writing at DailyKos, best encapsulates this widely remarked opinion as he notes:

This is a decision which the Supreme Court—if it hears the case at all—will affirm. It’s written in Justice Kennedy’s sweet spot, and I would not be surprised to see the Chief Justice and even Justice Alito potentially adhering to a precedent that said that if Romer remains good law, Prop 8 cannot stand.

On the other hand, there is a good chance same-sex marriage advocates will lose, and lose big. Adam goes on to note:

Am I disappointed this panel didn’t go further? Not really. No one knows where the Supreme Court as a whole is on marriage equality. And, in particular, we can’t be sure just where Justice Kennedy is on marriage equality, and on this he is the key vote. He has made clear that he believes in the role of the Supreme Court to be a leader on issues of social justice—whether in expanding gay rights or in looking to international norms to scale back America’s death penalty—and in this case Kennedy’s grandiosity could be marriage equality’s best friend.

But I wasn’t willing to take that chance. For all we know, Justices Breyer and Ginsburg might not be ready to go that far. Moreover, you can’t always rely on Justice Kennedy, who is a conservative, after all. Maybe he recoils from changing the national definition of marriage.

The bottom line is, no, there is never a “sure” indication of how the Court will rule, though yesterday’s opinion helps solidify various guesses. Does the 9th Circuit panel’s decision “set up” for a favorable ruling at the Supreme Court if it takes the case? Most likely, yes. Does that mean the Supreme Court will affirm yesterday’s ruling? There is a better chance. Does it mean the Supreme Court will “go big” and strike down laws across the country banning same-sex marriage, if it takes the case at all? Not necessarily.

10. So while this is all happening, the stay on yesterday’s decision is still in effect and same-sex couples cannot marry?

Yes, the stay is still in effect.  Footnote 27 in the opinion says that the previously issued stay remains in effect pending issuance of the mandate.  Mandate issues 7 days after the deadline for filing a petition for rehearing expires, or 7 days after a petition for rehearing is denied, whichever is later.  It’s generally expected that proponents will ask for a further stay from the 9th Circuit, and if that is not granted, they will ask the Supreme Court.

More questions can be submitted in the comments and we’ll keep an eye out and do our best to answer them here for you as well as in the comments. As such this post may update.

Update 1: Jeffrey C. Harris asks the following in the comments:

How likely is it that the proponents of Prop 8 will simply gain as many stays as they can manage, and then let the deadline for appeal pass by as a strategy to contain the ramifications of the 9th Circuit’s decision to California? Are the proponents of Prop 8 worried enough about their chances before the SCOTUS that they might give up California to keep the SCOTUS from using its prerogative to decide the whole issue for the nation with their appeal?

The answer is we never know, but can always guess. Some people are saying that the Prop 8 proponents might even not ask the Supreme Court to review it because they are afraid they will lose if the Court takes the case.

Update 2: Commenter _BK_ asks the following:

So what is the worst-case scenario when it comes to a final decision? Meaning, when is the very latest any absolutely final decision could be reached? When does the longest possible path end? Is it 2013, 2014, or later?

It all depends on whether there is en banc review by the 9th Circuit. If the proponents go directly to the Supreme Court and the Supreme Court accepts it, it’s probably safe to say we will have a final Supreme Court decision by July of 2013.  If there is an en banc review, the case could stay in the 9th Circuit for another year or more before it even gets to the Supreme Court — which would mean a Supreme Court decision in 2014, or possibly even later depending on how fast the en banc process moves.

Twitt

113 Comments Leave a Comment

  • 1. Sagesse  |  February 8, 2012 at 1:10 pm

    @

  • 2. _BK_  |  February 8, 2012 at 1:19 pm

    So what is the worst-case scenario when it comes to a final decision? Meaning, when is the very latest any absolutely final decision could be reached? When does the longest possible path end? Is it 2013, 2014, or later?

  • 3. Jon  |  February 8, 2012 at 1:24 pm

    Regarding the stay, why isn't anyone arguing about the harm of denying marriage to more recent LGBT couples who have adopted children since Prop 8 was passed?

  • 4. pal  |  February 8, 2012 at 1:25 pm

    I understand that there is a process for this but good god, this is just way to long to wait. And kind of insulting to ask us to keep waiting.

  • 5. Sam  |  February 8, 2012 at 1:28 pm

    2013, june 2013

  • 6. Kathleen  |  February 8, 2012 at 1:28 pm

    Just a bit of clarification, in case the statement, "[T]he 9th Circuit panel limited the scope of its ruling to Prop 8" causes confusion. While the Court was careful to say it was making a very narrow ruling, the way law works is there's nothing that means this case can't be used as legitimate precedent for another case in the 9th Circuit (assuming the decision isn't overturned on appeal). But it would only be useful precedent in a case that mirrored the situation in California as to the relevant facts.

  • 7. Ann S.  |  February 8, 2012 at 1:28 pm

    Thanks for this resource!

  • 8. Jeffrey C. Harris  |  February 8, 2012 at 1:31 pm

    How likely is it that the proponents of Prop 8 will simply gain as many stays as they can manage, and then let the deadline for appeal pass by as a strategy to contain the ramifications of the 9th Circuit's decision to California? Are the proponents of Prop 8 worried enough about their chances before the SCOTUS that they might give up California to keep the SCOTUS from using its perogative to decide the whole issue for the nation with their appeal?

  • 9. Adam Bink  |  February 8, 2012 at 1:36 pm

    You bet.

  • 10. Cheryl  |  February 8, 2012 at 1:49 pm

    blah…more waiting. wake me up when this is over.

  • 11. Adam Bink  |  February 8, 2012 at 1:56 pm

    Good question. Answered above.

  • 12. Adam Bink  |  February 8, 2012 at 1:56 pm

    Short thought on that above.

  • 13. rocketeer500  |  February 8, 2012 at 2:00 pm

    Jon, I'm not legal person, but I would think it would harm LGBT couples more if the stay was lifted during this period.

    The CASC ruled that the 18,000+ couples married during the legal period are considered married. If the stay was lifted, and same-sex couples began to marry, then those new marriages would be in legal limbo until the CASC rulled on those new marriages. It would be a legal nightmare for the courts. This way, no one gay couple can marry, and no marriages would risk voiding. The greatest harm would be for a same-sex couple to marry, and the CASC voided that marriage.

  • 14. D'n  |  February 8, 2012 at 2:10 pm

    It seems like the prop 8 lawyers are arrogant enough to think they will win at the SCOTUS. The big question would be whether the SCOTUS would even take it. As such a limited ruling I think they would refuse because it would lock them in a decision about future gay marriage lawsuits. If they do take it I would believe that they would try to rule on the constitutionality of gay marriage as a whole.

  • 15. Jeff  |  February 8, 2012 at 2:12 pm

    Given the narrow ruling of yesterday's Prop 8 decision, instead, wouldn't it be best now to follow closely the Massachusetts cases that are currently underway in the federal courts as the better strategy to tackle down DOMA?

  • 16. Kathleen  |  February 8, 2012 at 2:13 pm

    During one of the press conferences yesterday, Olson said they would be looking to lift the stay. I missed the details of when or under what circumstances they'll do that – might be only if the current expiration is extended–either because en banc is granted or Proponents petition for an extension–or maybe they meant sooner than that.

  • 17. Vynce  |  February 8, 2012 at 2:15 pm

    To help understand the ruling, can someone please explain or summarize Smith's dissenting opinion? Also, how is said dissent likely to play to the en banc or supremes? (also also, if prop-8-props go to SCOTUS & SCOTUS says no to review, can they still go to 9th en banc?)

  • 18. steven  |  February 8, 2012 at 2:22 pm

    I have a question, my understanding is that the stay will be expired on Feb 28th if protectmarriage.com doesn't file an appeal by the 28th is that true?

  • 19. ĶĭŗîļĺęΧҲΪ  |  February 8, 2012 at 2:29 pm

    In my understanding, the proponents already decided they will not be seeking the en banc review, but rather will go straight to the Supreme Court. My question is, if in that case the SC doesn't take the case, can the proponents ask for the en banc review afterwards? Or does asking the SC review automatically means no going back to the en banc review?

  • 20. Kathleen  |  February 8, 2012 at 2:34 pm

    Where did you hear they're not going to ask for en banc review?

  • 21. ĶĭŗîļĺęΧҲΪ  |  February 8, 2012 at 2:39 pm

    Read it this morning here: http://thenewcivilrightsmovement.com/prop-8-suppo…

    And they are obviously quoting this: http://www.protectmarriage.com/blog/2012/02/prop-…

    I'm not sure Pugno's statement actually says they are going to the SC right away, but that is how thenewcivilrightsmovement.com interpreted it, so I'm just quoting them.

  • 22. Mark M. (Seattle)  |  February 8, 2012 at 2:40 pm

    Listening to the House debate before the final vote for Washington marriage equality bill passes.
    Best quote of the day has to be:
    "Domestic partnership frankly sounds to me like a Merry Maids franchise"
    LOVE IT!!

  • 23. Kathleen  |  February 8, 2012 at 2:42 pm

    Yes, if Proponents don't request an en banc review and don't petition to have the current stay extended, it will expire on Feb 28.

    Currently, the stay is in place until the 9th Circuit issues its mandate; the date for issuance of the mandate is, in turn, tied to deadlines having to do with en banc review. The minute Proponents petition for en banc review, it puts the mandate on hold until some time after either, (1) review is denied, or (2) the larger panel issues its decision.

    But I think it's safe to assume all the stay will be challenged by one, if not both, sides and it likely change the relevant dates.

  • 24. Kathleen  |  February 8, 2012 at 2:44 pm

    I think that's based on a mis-reading of the Andy Pugno quote. It just says it will ultimately be decided by SCOTUS and that they "will immediately appeal." But it doesn't say that the "immediate" appeal will be to SCOTUS.

  • 25. Kathleen  |  February 8, 2012 at 2:50 pm

    Here's the summary of the decision by the court staff. One paragraph is devoted to Smith's dissent.
    http://www.scribd.com/doc/80789246/10-16696-Summa…

    Who knows what's in the minds of the SCOTUS Justices? IMO, the dissent is rather muddied and grasping at straws. And that's not just because it comes to the wrong conclusion but I keep waiting for him to whip out something other than Baker and "responsible procreation" – neither of which seem to be justify the law.

    As to your procedural question, No. If Proponents appeal directly to SCOTUS now and skip petitioning for en banc review, they can't come back to the 9th Circuit later.

  • 26. Jacob  |  February 8, 2012 at 2:51 pm

    Agree. You can hear Pugno's current position here.
    http://www.kqed.org/a/radiospecials/R201202071800

  • 27. Kathleen  |  February 8, 2012 at 2:54 pm

    I see we have another internet article that's going to take on legs of its own… I've seen nothing anywhere from Proponents saying they've decided to forgo en banc review.

  • 28. David C.  |  February 8, 2012 at 2:57 pm

    If Prop 8 proponents go directly for a SCOTUS review and ruling, bypassing a Ninth Circuit en banc ruling, and SCOTUS does not accept the case, can Prop 8 proponents then request the en banc review at the state appeals court level?

  • 29. Nick  |  February 8, 2012 at 2:59 pm

    I know these questions really don't have any knowable answers at this point, but I'm curious about soonest-case timing. Let's say both the 9th Circuit refuses an en banc appeal, and SCOTUS denies cert. How soon could that presumably happen and a final judgment be entered? I think at this case anything's a possibility, but I could certainly see the 9th Circuit passing on an en banc hearing, and I happen to think the Supremes would love to punt on the same sex marriage issue for now and the appeals court's ruling is so narrow as to be an invitation for cert denial. To me, SCOTUS denying cert would be the best thing we could hope for… if SCOTUS hears the case and affirms the ruling, nothing changes, since the decision is so limited in scope to California, so in essence we only have the risk (SCOTUS reversing and affirming Prop 8) with no discernible reward.

  • 30. Kathleen  |  February 8, 2012 at 3:04 pm

    I'm not sure what you're asking… if you're asking if this could be reviewed by a California state court, the answer is no. This is a federal court ruling saying that a state law violates the U.S. constitution. In the case of a conflict of law, the federal law trumps state law. So no state court has authority to overturn this decision, only a higher federal court can do that.

  • 31. allen  |  February 8, 2012 at 3:09 pm

    I was going to ask this same exact question. Assuming for the question and since we don't know for sure, if they do indeed request to bypass en banc and get smacked down by US sups, can the Prop 8 people request en banc after the fact if they choose this route?

  • 32. allen  |  February 8, 2012 at 3:16 pm

    and by "smacked down" I meant the Supremes declining to hear it.

  • 33. Jacob  |  February 8, 2012 at 3:25 pm

    Nothing comes after the Supreme Court. If they were to decline to hear it, that would be the end.

  • 34. Rick  |  February 8, 2012 at 3:26 pm

    It seems that the proponents would certainly request the en banc appeal just to drag things out longer and delay the likely inevitability of gay marriage in CA. What have they got to lose other than some more legal fees?

  • 35. Julie Murphy  |  February 8, 2012 at 3:27 pm

    I have a question about the similarity between legal marriage and domestic partnership in California. My understanding is that the statuses are mostly, but not entirely the same (not including social arguments about being able to use the word "married"). I am both married and in a DP. 2 of the differences, as I understand them, have to do with the process of becoming married/a DP. If one can marry, one can choose to have a private marriage. Not so with DPs. One can also marry without parental consent (I think between ages 16-18 not sure) but would need permission in that age range to be a DP. But the one that concerns me (since the other two no longer apply, now that I'm a DP) is that I thought that one could not live apart from one's DP, yet married people can. This is important in an economy that will likely force my wife to seek employment away from home. Since we are also married, it's not an issue for us. But what about all the non-married DPs? Is this something the court failed to consider? Are DPs and marriages legally identical in the California legal system?

  • 36. chris from CO  |  February 8, 2012 at 3:31 pm

    washington house passed marriage bill.

  • 37. Steve  |  February 8, 2012 at 3:31 pm

    He's asking whether an en banc hearing can still be requested after SCOTUS declines or if absolutely has to happen BEFORE a SCOTUS appeal

  • 38. frisky1  |  February 8, 2012 at 3:48 pm

    Here's a question – Is there a possibility and is it realistic that SCOTUS might take the case just to deny standing in the appeal and knock it back down to the district court decision? Has the 9th circuit done anything in granting standing that might make SCOTUS want to get involved because of that?

  • 39. Kilgore Trout  |  February 8, 2012 at 4:37 pm

    I think they will request full review before appealing to SCOTUS. They know they're eventually going to lose. Just look at all their other lawsuits. Their game is now (stay and) delay. Depending on what happens, they could continue this out for three or more more years this way. My apologies if this is a duplicate post.

  • 40. X-man  |  February 8, 2012 at 4:54 pm

    And that can't really happen because none of the other 9th circuit jurisdictions have legalized marriage and then passed an initiative or referendum to revoke it, unless Washington State were to pass an initiative in the future now that they have marriage equality.

  • 41. bythesea  |  February 8, 2012 at 5:07 pm

    If they appeal to SCOTUS and don't bother trying to get an en banc ruling they would get an answer back in a few months. If SCOTUS denies cert then marriages would begin the next day and the case is done, so in that scenario marriages resume likely later this year, perhaps in only a few months. If SCOTUS decides to hear the appeal then everything will be stayed (most likely) until the rule on the appeal sometime next year. If they do decide to go the en banc route, then that adds some more time on the timeline, assuming the Ninth agrees to hear it (though most seem to think they would not if asked, which they may not be).

  • 42. Axe  |  February 8, 2012 at 5:11 pm

    Great article.

  • 43. David C.  |  February 8, 2012 at 5:13 pm

    Thanks Steve. Yes, that was what I was trying to ask.

  • 44. chiefscribe  |  February 8, 2012 at 5:47 pm

    Thanks for explaining all this.

    One question about the Ninth Circuit.

    I understand that the Ninth Circuit, being larger than all the other circuits, has a different appeals process and that en banc review means an 11-judge panel rather than the full circuit. And then there's "super en banc", meaning the entire circuit.

    It seems that if an appeal fails at the en banc (11-judge) level, the losing side can request "super en banc" review after that. Cf. http://circuit9.blogspot.com/2009/12/case-o-week-… https://www.eff.org/deeplinks/2010/09/revised-opi…

    But what I'm wondering about is

    (1) whether, if an en banc (11-judge) review is denied, can the losing side request "super en banc" (full circuit) review after that, or would the denial mean that the Ninth is done with it completely?

    and

    (2) how often does the Ninth Circuit grant "super en banc" review? From a quick web search I gather it's not often.

  • 45. Alex  |  February 8, 2012 at 5:48 pm

    SB 651Domestic Partnership Equality Act. Both persons do not have to live together. Which was signed by Gov. Brown:

    "Many inequalities exist between marriage and domestic partnership in California. For example, the law previously requested couples who wish to enter into a domestic partnership must first be living together, while there is no such requirement for marriage. SB 651 corrects this problem and other differences that remain between marriage and domestic partnerships, bringing our state one step closer to equality while we wait for a final ruling in the federal case against Prop. 8. This bill also authorizes a judgment for dissolution, nullity or legal separation of a marriage between persons of the same sex to be entered if the marriage was entered in California and neither party to the marriage resides in a jurisdiction that will dissolve the marriage. "

  • 46. Alex  |  February 8, 2012 at 5:50 pm

    SCOTUS is known for striking down a lot of court decisions from the 9th Circuit as they despise those "liberal judges".

  • 47. Jamie  |  February 8, 2012 at 5:57 pm

    That's not true at all. Those marriages would be legal during the time that the stay was lifted. They would be able to take part in all the rights of marriage. We don't know, they might even be able to file joint tax returns for 2012. Whether those couples would become divorced when the Supreme Court finally hears their case would remain to be seen, but the benefits to the couples, and to gays and lesbians in general, in the interim is irrefutable.

  • 48. Jamie  |  February 8, 2012 at 5:59 pm

    I doubt that is the case behind closed doors.

  • 49. Ed Cortes  |  February 8, 2012 at 6:05 pm

    I believe for an 11-member panel, a majority of the justices have to agree to hear it. If that fails, they won't get the votes for a super panel at all.

  • 50. Jamie  |  February 8, 2012 at 6:05 pm

    I don't believe they can ask for an en banc review if SCOTUS declines to hear the case. It's even less likely (I would dare say a foregone conclusion) that the 9th Circuit would agree to hear it. The only possible reason that the 9th Circuit en banc would want to accept after SCOTUS declines would be expand the ruling's breadth. Why would Prop 8 supporters want that?

  • 51. Jamie  |  February 8, 2012 at 6:09 pm

    I'm not sure the stay is a foregone conclusion. I think the 9th Circuit might be feeling pretty good about this decision, and provide a short stay to allow the Prop8 team to do an emergency appeal to the Supreme Court. I'm not sure the Court would grant a stay.

  • 52. Jamie  |  February 8, 2012 at 6:11 pm

    You still have to pick up the domestic partnership forms from the state and mail them back as opposed to getting the marriage license from a clerk at City Hall. I've always wondered if they left this one inequality on purpose.

  • 53. Jamie  |  February 8, 2012 at 6:15 pm

    If SCOTUS kicks this back to the 9th Circuit, it's likely the 9th Circuit says fine: Gays and lesbians are a suspect class –> Laws denying rights to suspect classes are immediately suspect –> There is –> There is a right to gay marriage in every state. Think the Supreme Court is ready to knock that back?

  • 54. Jamie  |  February 8, 2012 at 6:17 pm

    So the Proponents could lose not just twice, not just three times, but four times before they appeal to the Supreme Court? That's really setting themselves up for a win!

  • 55. Leo  |  February 8, 2012 at 6:43 pm

    The deadline for requesting en banc review is only 14 days from the decision. If they go straight to SCOTUS, the deadline will have surely passed by the time SCOTUS denies certiorari.

  • 56. Larry  |  February 8, 2012 at 6:51 pm

    The way I see it (and someone with legal experience is welcome to correct me) SCOTUS has a lot of options if and when they finally get the case, in addition to simply refusing to hear the case. (A) They could agree with the 9th circuit's decision and declare Prop 8 unconstitutional on narrow grounds. (B) They could disagree with the 9th circuit's decision allowing standing, which would leave the original district court decision in effect. (C) They could disagree with the 9th circuit's decision on Prop 8 specifically since it took away a right (e.g. echoing Judge Smith's decision about how Prop 8 passed the rational basis test), but since the 9th circuit hasn't yet decided anything about whether gay marriage bans are allowable more generally send the case back to the 9th circuit to decide the issue. (D) Same as C but they could do the analysis themselves and find gay marriage bans broadly unconstitutional. or (E) Same as D except finding gay marriage bans broadly constitutional.

  • 57. Straight Dave  |  February 8, 2012 at 7:56 pm

    I thought that the post-Prop 8 Strauss v Horton case said that marriages are permanently vested once they take place. That is good CA law that should also apply now.
    But i don't expect SCOTUS to lift the stay, even though their own guidelines strongly suggest they should. I'm hoping they don't even take the case.

  • 58. steven  |  February 8, 2012 at 8:19 pm

    Remember, they didn't grant a stay in Washington DC marriage equality fight.. At the end, they rejected the appeal without making any comments..

  • 59. Michael D.  |  February 8, 2012 at 8:54 pm

    So from reading all of the above options and the timelines, it is possible that this can drag on until 2014 before marriages can take place again. Question: What happens if a new Proposition is but on the ballot and voters now pass gay marriage before a final court decision in the Prop 8 trial is reached? Does the new prop vote trump the court case and can gay marriages take place?

  • 60. Kathleen  |  February 8, 2012 at 9:27 pm

    Per Chief Judge Kozinski testimony in Oct 2003, at that time, "This has never happened since the limited en banc rule was adopted by the Court in 1980. The Court accepts the decision of the en banc court as the law of the circuit."
    http://judiciary.house.gov/legacy/kozinski102103….

  • 61. Kathleen  |  February 8, 2012 at 9:29 pm

    I only meant to quote the first sentence. The second probably doesn't make much sense out of context.

  • 62. Mike  |  February 9, 2012 at 12:15 am

    Who can I sue for emotional and economic damages as a result of prop 8?

  • 63. Guy in CA  |  February 9, 2012 at 12:24 am

    It would not be a wise move to try repeal Prop. 8 until the court efforts are exhausted. If a repeal of Prop. 8 were successful in 2012, SSM would resume and the current court case would become moot and dismissed. Then NOM could put another Prop to ban SSM on the ballot in 2014 and if it passed SSM would again be halted. All the work challenging Prop. 8 would be moot and a court challenge to a newly passesd ban in 2014 would have to start all over again at the beginning.

  • 64. Bill S.  |  February 9, 2012 at 6:45 am

    If the stay were lifted and couples were to get married, then the decision were reversed (Prop 8 held to be constitutional) then all those marriages would be voided because it would have been determined that Proposition 8 was valid all along. The California Supreme Court has nothing to do with this.

  • 65. Bill S.  |  February 9, 2012 at 6:53 am

    Absolutely. Perry v. Brown will not be the case that secures marriage equality across the country. It is necessary first for the Supreme Court to issue a definitive ruling on what level of scrutiny is properly applied to sexual orientation and that will come with the DOMA challenges. There are too many challenges in too many jurisdictions in the country for them not to take this case and settle the question nation-wide. It is here that I believe that they will decide that heightened scrutiny is applicable for such laws, leading the way for a more robust marriage equality decision in the lower courts.

    Reading this decision, it becomes obvious that using the rational basis test to adjudicate laws that burden gay people is becoming an anachronism. Given our current-day understanding of human sexuality, we can no longer accept unsubstantiated sociological perceptions by straight people on such a complex scientific field as a standard by which such laws are measured. The 9th Circuit seemed strained to strike this law down — it had to think of any possible basis the people had for passing it and explain how it was completely irrational or how Prop 8 didn't actually advance that interest. For the most part, they were unable to do the former. They had to rely on the assumption that perhaps those interests were valid, but Prop 8 didn't actually advance any of them. This decision, taken literally, would not prevent a more complex, intricately phrased referendum from withstanding rational basis scrutiny that would, ironically, more profoundly affect gay people.

  • 66. Bill S.  |  February 9, 2012 at 6:55 am

    He says that the rational basis test is highly deferential and that virtually any reason given by the people is a valid one provided that it doesn't conflict with the Constitution. However, he concedes that the standard is not toothless and that no matter what this basis is, the law must be shown to actually advance that interest with some basis in reality. He never overcomes that second hurdle.

  • 67. Sheryl_Carver  |  February 9, 2012 at 7:10 am

    That's my opinion, too, Rick. The more rational members of the proponents must understand that they are fighting a losing battle as far as preventing marriage equality goes. However, the longer this drags on, the longer they can continue to discriminate, & those who are making money from this continue to get paid by the anti-equality crowd.

    Until SCOTUS finally rules that all discrimination against LGBTs is unConstitutional, you can be sure that BB & MG & all their cohorts will be continuing to beg for their salaries, & continue spreading fear-mongering lies about us. It's too bad they aren't using all that money to get some serious therapy for themselves.

  • 68. Gregory in SLC  |  February 9, 2012 at 8:49 am

    INDEED!!!!!

  • 69. MightyAcorn  |  February 9, 2012 at 9:02 am

    I also believe that, once they fail, their donations will dry up, for other state campaigns too. They made big promises and epic-failed here in CA, and I think many of their donors will be disgruntled their money was wasted ( they tend to be disgruntled anyway.) So of course the impulse will be to delay as long as possible.

  • 70. Jimig  |  February 9, 2012 at 9:09 am

    I think as long as the NOM is paying the fees for lawyers they will keep filing and pressing forward, maybe not thinking they will win but realizing they still have someone paying them to act. If NOM stops even for a minute they start loosing funding and they wont want to give that up. Beside what would NOM and Focus on the family do if they couldn't hate gays. God would be so upset if they used that money to help the needy or poor. People give millions to hate gays but very little to feed god's children. WTF.

  • 71. Straight Dave  |  February 9, 2012 at 9:21 am

    I disagree, but will submit my argument to the legal crowd we have here.
    Prop 8 might possibly be determined to be a valid act, eventually. But the Walker and the 9th Circuit decisions were also valid. Once the stay is lifted, those are the law. Prop 8 is legally off the books. Marriages will happen and they will remain valid based on Strauss. If Prop 8 later gets restored by SCOTUS, so be it. Back in the books it goes. But the marriages stay, since they adhered to the law that was in effect at the time.

    That scenario is why courts like to issue stays, to avoid jerking people around.

  • 72. Straight Dave  |  February 9, 2012 at 9:26 am

    I'm not claiming this argument would be true for all kinds of cases, but Strauss recognized that marriage was special and people made commitments and decisions based on what the law was at the time. It would be improper to pull the rug out from them later.

    If it was a simple case of me stealing your rake and we passed it back and forth 3 times before the dust settled, no big deal.

  • 73. chiefscribe  |  February 9, 2012 at 9:29 am

    Thanks. I am still wondering if the losing side can waste time by *requesting* "super en banc" after a denial of "en banc".

  • 74. Bill S.  |  February 9, 2012 at 9:49 am

    Sorry, but this is just factually incorrect. When a higher court reverses a lower court's ruling, it is saying that the lower court was wrong to rule the way it did and that therefore the lower court's ruling was always invalid.

  • 75. Jimig  |  February 9, 2012 at 10:17 am

    A DP fights for their rights (money shared and protecting the one depending on the other) a marriage fights for the whole families rights (that's the difference).

    As a child of a same sex couple who have been together for over 45 years and now a married father of 2 I think from a child's point of view the DP is bullshit. One of NOM and Focus on the Families attacks were spreading lies about children and families. So from my humble opinion a DP may work well for working type couples or couples without children but it just isn't the same to the children. Some people want to be in a DP that's fine I get that but many are forced into it and they don't want to be treated or see their children treated like lesser than. What pisses me off is it's about love and clearly NOM is not focused on love I think they forgot to read the new testament. Last week for the first time in 45 years my mom's partners kid's (sucks I have to call her a partner she's also my mom) and my mom's partner called me or referred to me as their step son / brother. That may not be a big deal to NOM but it shows that for 45 years my family has felt persecuted and no DP would ever fix that relationship. I cried that privately we call each other a family but in public we shy away because we 3 children witnessed so much hatred from our neighbors. So we except the DP because it's great for those who don't want to get married (mostly religious children whose parents got divorced – Maybe?). The DP is the public's way of saying the religious groups have defaced the value of marriage recognizing the high rate of divorce. It's a class structure those opposed to marriage have supported and convinced LGBT that DP is for them which is crap it was intended for couples who want to share their lives but not have to worry about divorce. DP's are good for some couples but really if NOM were to believe in their own arguments they would fight for marriage for all families and do away with DP which in their religious view is just as sinful (living together and having sex). They don't fight DP because they know it's a lower class standard. So in reality I see DP as a way to protect wives and children in relationships where one person is dependent on the other and one is afraid of marriage. Remember part of the establishment of DP was to protect those ladies living with rich guys who would just pack up and leave for a new lady and leave the old one behind with nothing. It was a legal answer to protecting unmarried women and children it was not intended for LGBT. DP have been forced on the LGBT community and it's clear why NOM doesn't fight DP because they know 2 things one it protects rich white guys and 2 it is a second class it the family values discussion. I hope the LGBT community remembers the children in this fight it was NOM's and Focus on the Families lies about LGBT families raising children that barely gave them the 52% to pass the prop 8 vote. We fight for the right to marry but we also fight for the right to raise a family we fight for the rights of our children and to me that's the difference between a DP and a marriage. I often see DP – LGBT fighting for their own rights but those interested in getting married see the bigger picture a DP is in no way the same it was intended at first to protect the rich white guys.

  • 76. Jimig  |  February 9, 2012 at 10:27 am

    Maggie Galloway and I don't think you would have a problem finding a lawyer. I am in no way a legal person but can you show cause I mean did you have a wedding planned, made deposited, bought rings, did it keep you from something like adopting a child or buying a home? Ca has lots of laws surely one could be used. lf you could show or prove harm, you clearly could show she willing lied to cause harm. Oh hell it would be fun just to get her to testify about where she gets her information and the sources she provides.

  • 77. MightyAcorn  |  February 9, 2012 at 10:33 am

    ButI that doesn't necessarily or automatically invalidate actions that were lawfully entered into during the period of the existing law. Excuse the example, but outlawing the death penalty does not invalidate the sentences of those convicted while the death penalty was in effect. Divorces granted for cause are not invalidated when the law changes to no-fault. One looks at wharever laws or rules prevailed at the time of the action, not later legislation or rulings. Usually.

    Additionally, most states including CA bend over backwards to affirm the validity of marriages entered into in good faith, even if procedures weren't properly followed (and before anyone brings up Gavin Newsome, those marriages were invalidated because he did not have the authority to unilaterally start issuing marriage licenses to same-sex couples, only the State can authorize that.)

    The marriage licenses issued and solemnized during our Marriage Equality Months were legally issued and therefore held to be valid even after the law changed. No new marriages could be performed however, and we're still waiting even though Prop 8 has been overturned, because of the stays pending appeals. It was bad luck for the Proponents that there was no way to invalidate CASC's ruling granting marriage equality sooner, but their loss was our gain especially as it pertains to the "giving/taking away a right" argument in the latest ruling.

  • 78. Carpool Cookie  |  February 9, 2012 at 11:16 am

    "While the Court was careful to say it was making a very narrow ruling, the way law works is there's nothing that means this case can't be used as legitimate precedent for another case in the 9th Circuit (assuming the decision isn't overturned on appeal)."

    I would also think all of Judge Walker's Findings of Fact can be cited in other federal cases. It doesn't mean they automatically would win every argument, but they would be legitimate federal findings (?) And the fact that they're so recent would help them trump other federal findings on the books which are older, through the legal process of stare decisis.

    Right?

  • 79. Carpool Cookie  |  February 9, 2012 at 11:18 am

    [b]"If NOM stops even for a minute they start loosing funding and they wont want to give that up."[/b]

    Salaries are certainly the primary incentive for many staff members in that wretched organization. It's pitiful.

  • 80. Carpool Cookie  |  February 9, 2012 at 11:26 am

    And, part of the reason parties are given a certain window of time in which to file an appeal is an acknowledgement that attorneys and clients will want to discuss strategies, and personal investment in a cause. (Not to mention the fees involved!) It's not like Jeopardy, where 5 seconds of music plays and you're expected to have an answer : )

    So, the proponants may well still be weighing the value of an en blanc hearing….and haven't firmly made up their minds yet.

  • 81. Carpool Cookie  |  February 9, 2012 at 11:27 am

    OMG….that's hysterical ! !

  • 82. Carpool Cookie  |  February 9, 2012 at 11:57 am

    " What have they got to lose other than some more legal fees?

    Well, the vote could be even more disasterous for them….the whole panel could vote to uphold the earlier ruling, with few or no disenters, which would be another loss on their record. Then they'd be losing 3 for 3.

  • 83. Carpool Cookie  |  February 9, 2012 at 12:06 pm

    " Their game is now (stay and) delay."

    I have a sudden image of their grubby little faces in helmets, peering up from a muddy foxhole.

  • 84. Carpool Cookie  |  February 9, 2012 at 12:15 pm

    Plus, even if Marriage Equality went on the ballot every time and we won, we'd still have to be out there knocking on doors, raising major funds, making commercials and buying air time, securing endorsments….and we'd be tied to that very agravating and upsetting battle until SCOTUS made a federal ruling in another case (in our favor).

    Who wants to live like THAT? Better to have the professionals deal with it for a once-and-for-all decision re: CAlifornia…especially since we have the best legal team in America forcefuly advocating for our side FOR FREE….and WINNING.

  • 85. Carpool Cookie  |  February 9, 2012 at 12:17 pm

    Personally, I'm upset, as I thought some marriage proposals would come rolling in yesterday with the ruling, for long engagements, at least.

    I am sitting by the phone. It's silent.

    (Could be broken?)

  • 86. MightyAcorn  |  February 9, 2012 at 12:45 pm

    Aww Cookie, I'll marry you even though I'm already married. Everyone knows that legalizing same-sex marriage will lead to polygamy–or so the Proponents like to say, off the judicial record of course–so once marriage equality is back in CA we should be all set! Hmmm, what to wear……

  • 87. MightyAcorn  |  February 9, 2012 at 12:49 pm

    JMG has the video, very nice speech by a Republican straight ally with a lesbian daughter: http://www.joemygod.blogspot.com/2012/02/heres-hi…

  • 88. Carpool Cookie  |  February 9, 2012 at 1:49 pm

    Thank you : ) I think Kate (?) offered to marry me at one low point, too. She has a farm, and how ever it all ends up, I think we can all go live there. Even if she doesn't invite us, we can live as poachers, steal eggs in the night, etc.

    Wait….where are you going?

  • 89. Mark M. (Seattle)  |  February 9, 2012 at 2:24 pm

    Class action anyone???? :-)

  • 90. chiefscribe  |  February 9, 2012 at 3:40 pm

    Thanks. Wasn't concerned about whether the losing side would *succeed* in their request; rather, about how long they could delay the process by requesting en banc review and then requesting super en banc review.

  • 91. breaking through the clou&hellip  |  February 9, 2012 at 7:49 pm

    [...] Anyway, this madhouse isn’t over yet, but – hey, solid progress! Answers to some of the more common questions (such as “what the fuck happens now?”) can be found with the Prop 8 Trial Trackers. [...]

  • 92. cskwriter  |  February 9, 2012 at 10:00 pm

    I can't seem to find this question answered, but i might have missed it:

    If Proponents appeal for an en banc rehearing, does the stay *automatically* extend through that process, either denial or approval and then the months until the en banc decision?

    In other words they automatically can stop marriage equality by doing nothing more than requesting the en banc, and the Ninth would have to extend the stay (ie, not release the mandate?). Or could the Ninth agree to consider the rehearing yet also release the mandate on schedule?

  • 93. cskwriter  |  February 9, 2012 at 10:05 pm

    Follow up:

    Assuming the Ninth could still release the mandate on the 28th, could they do that on their own even after either an en banc rehearing request or appeal to SCOTUS, or would AFER (Boies et al) specifically have to request a lift of the stay in the face of continued delay tactics to block the restoring of equality and and the elimination of Plaintiff's harm?

  • 94. cskwriter  |  February 9, 2012 at 10:16 pm

    Follow up follow up:

    I don't see how continuing the stay indefinitely until potentially as late as mid 2014, under the argument that lifting it would 'change the facts on the ground', when there are about 18,000 (x2?) 'facts on the ground' already. If this is a restoration of equality that already existed would that not need to happen as soon as reasonably possible (ie Feb 28), independent of further appeal by Proponents that have now lost big, twice?

  • 95. GeoSF  |  February 9, 2012 at 11:37 pm

    @Jamie: Even if the stay is lifted, same-sex couples married in California (at any point) would not be able to file a joint tax return — at least not a joint IRS Federal tax return — because same-sex marriage in California still does not convey any Federal rights whatsoever. Unfortunately.

  • 96. Bill S.  |  February 10, 2012 at 2:05 am

    The thing is that judges DO NOT change the law. Proposition 8 will always be on the books until it is amended out of the Constitution. The courts can only enjoin its enforcement, by ruling that it was always invalid from the moment it passed or that it was always valid from the moment it passed.

    If a higher court reverses, they are saying that Proposition 8 was valid law from the moment it was enacted. If any marriage licenses were to be granted during a stay, they would have to be invalidated or else the State of California would be violating their own constitution. There would be no active provision of the California constitution or state law that would have legally permitted those marriages in the first place.

    Normally this would create chaos but it really doesn't have to. If the stay is lifted, gay couples could apply for both a domestic partnership and a marriage at the same time. Gay couples don't get federal rights yet, so if the marriage were invalidated they would still operate on the same terms under a domestic partnership.

  • 97. MJFargo  |  February 10, 2012 at 6:54 am

    They have nothing to lose by filing more appeals. I can't imagine they would give up…ever.

  • 98. Straight Dave  |  February 10, 2012 at 6:58 am

    LOL- a great WW2 analogy!
    …and their supply lines slowly being cut off, unhappily counting down the hours and days

    Schadenfreude isn't always a becoming emotion, but in this case I don't feel bad about it at all.

  • 99. MJFargo  |  February 10, 2012 at 7:13 am

    Agreed, but Prop 8's simple language was purposeful to avoid the appearance of animus. Trying to construct something "more intricate" only opens it up to more scrutiny and objection by potential voters who are, at least, ambivalent about same sex marriage. The trial was an example of the kinds of arguments our opponents can make; and that turns about to be…very few.

    What I liked most about Judge Reinhardt's ruling was he illustrated how intertwined LGBT rights already are in our society (at least California). A lot would have to be undone—which is always possible, but not probable—for any anti-equality language to withstand challenge in the courts. To remove “sexual orientation” protections from the California Constitution and various State laws would be an ugly fight that I don’t see happening, despite how much our opponents here would like to do that.

  • 100. MJFargo  |  February 10, 2012 at 7:19 am

    Well, in this case the only thing they have going for them is the ability to delay. So I'd put my money on them asking for an en banc review.

  • 101. MJFargo  |  February 10, 2012 at 7:24 am

    Prop 8 and this case are so narrowly a California-centric problem, that I think SCOTUS will also reject the appeal. But they might want to clarify the standing issue. That was the only part of the opinion that seemed to impact Federal concern.

  • 102. MJFargo  |  February 10, 2012 at 8:01 am

    (I'm with you on this.) Maintaining the status quo in the case is difficult to discern.

  • 103. MightyAcorn  |  February 10, 2012 at 8:49 am

    I think most couples would rather wait for the issue to be fully resolved rather than risk the expense and possible heartbreak of a "stay marriage." That said, it would be useful for those with emergent legal need to be able to marry.

  • 104. DavidHart  |  February 10, 2012 at 9:12 am

    The reason that this is so difficult to pin down is that proponents of Prop 8 have competing attorneys. Charles Cooper has been trial counsel but he has often been at odds with the fundamentalist crazies like ADF. and Pugno. the latter group presume to be defenders of the faith and on God's contact list.

  • 105. curious  |  February 10, 2012 at 9:25 am

    Does the 9th Circuit ruling have any bearing on Washington State? Or Hawaii? If a threatened referendum in the former state is on the ballot, isn't it already viewed as unconstitutional? And couldn't someone in Hawaii make a similar claim that a duly enacted right had been taken away by voter initiative? Could this apply to other circuit courts, the 1st for example? Didn't Maine voters repeal an enacted same-sex marriage law?

  • 106. DavidHart  |  February 10, 2012 at 9:33 am

    Indeed. Walker made his ruling almost two years ago. A year was wasted on resolving standing because the California Supreme Court had no sense of urgency and Prop 8 never should have been on the ballot in the first place. Prop 8 is in recognition of religion. Yet, that argument is seldom made.

  • 107. DavidHart  |  February 10, 2012 at 9:41 am

    Nope. This ruling is confined to the unique circumstances of California. The good news is that NOM is already spread very thin and it shows. Brian Brown has been reduced (even further) to a mindless hyperbole machine. The fire alarm never stops ringing.

  • 108. Straight Dave  |  February 10, 2012 at 9:41 am

    But even the standing issue was fairly narrow. It hinged on an explicit declaration by CA SC that proponents can represent the state. That's CA law. In the Arizonans case, SCOTUS said they found no such AZ law, leaving the door open for CA to meet that implied standard. I don't think it's a nationwide concern now because I don't expect many states to have the strong proponents rights that CA does. Unless SCOTUS wants to question the CA SC interpretation of CA law, I can't imagine they'd want to pick that fight now.

  • 109. MJFargo  |  February 10, 2012 at 2:58 pm

    Sorry, Dave. The standing issue hits a nerve with me. From the appellate ruling:

    As the California Supreme Court has explained, “the role played by the proponents” in litigation “regarding the validity or proper interpretation of a voter-approved initiative measure…is comparable to the role ordinarily played by the Attorney General or other public officials in vigorously defending a duly enacted state law.” .. When the Attorney General of California appears in federal court to defend the validity of a state statute, she obviously need not satisfy the requirements of third-party standing; she stands in the shoes of the State to assert its interests in litigation. For the purposes of the litigation, she speaks to the court as the State, not as a third party. The same is true of the Proponents here, just as it was true of the presiding legislative officers in Karcher. The requirements of third-party standing are therefore not relevant. [end of quote]

  • 110. MJFargo  |  February 10, 2012 at 2:59 pm

    (continued from preceding)
    I don't know about you, but I see a very distinct difference between elected officials and proponents for an initiative (who are without any checks or balance). No one nor any statute granted the proponents standing in this case. In contravention of Judge Reinhardt’s own words, “It is not for a federal court to tell a state who may appear on its behalf,” when that’s exactly what the good Judge did by asking the Supreme court for an opinion, which they responded with, “Well, we tend to be liberal interpreting who has standing in STATE Court” and then take those words to somehow mean there was an existing statute which awarded the proponents standing, particularly after two Attorney General’s and two Governors believed Prop 8 to be unconstitional…which now Judge Reinhardt seems to think so too. It’s a mess and a big one. Leaving this language on the book effectively trashes Title III and I don’t think SCOTUS is going to like it.

  • 111. Mike  |  February 12, 2012 at 6:27 pm

    Can they go to the Supreme Court and then–for whatever reason–follow that up with an en banc appeal? Or does that avenue close once they appeal to the Supreme Court? Logic tells me they can't go backwards like that, and I've learned not to trust logic on legal matters…

  • 112. Adam Bink » Blog Ar&hellip  |  April 16, 2012 at 4:47 pm

    [...] Top 10 questions on next steps in the Prop 8 trial, Prop8TrialTracker, February 8, 2012: This is a piece answering the most common ten questions from laypeople following the Prop 8 case, now that a 3-judge panel from the 9th Circuit Court of Appeals ruled that Prop 8 is unconstitutional. [...]

  • 113. Prop 8 Trial Tracker &raq&hellip  |  June 6, 2012 at 6:16 am

    [...] are reasons to hope the Supreme Court does not take the case. Perhaps chief among them is, as Adam noted here back in February, there is a big chance that supporters of marriage equality could lose. No one [...]

Leave a Comment

(required)

(required), (Hidden)

XHTML: You can use these tags: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>

TrackBack URL  |  RSS feed for comments on this post.

Having technical problems? E-mail equalityontrial AT couragecampaign DOT org for assistance!