February 8, 2012
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?
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.