April 20, 2012
By Scottie Thomaston
We are still awaiting a decision on whether the Ninth Circuit will rehear Perry v. Brown en banc or decline to do that, and stick with its narrowly drawn decision on the case. Eventually though, one of the parties will likely attempt to ask for review at the Supreme Court. Former Chief Judge Vaughn Walker, who authored the District Court decision striking down Proposition 8 on much broader grounds, recently suggested that the Supreme Court may not hear the case, leaving the Ninth Circuit decision intact by default:
Vaughn Walker, the now-retired chief judge of the U.S. District Court for the Northern District of California, told a Commonwealth Club audience April 19 that there is reason to believe the case will end in the 9th Circuit Court of Appeals, where it is currently on appeal.
“There is some question if the Prop 8 case will go to the United States Supreme Court,” said Walker, who oversaw the Prop 8 trial and issued his ruling striking down the antigay ballot measure in 2010. “Because of the narrow grounds the 9th Circuit ruled on, they could turn down that case.”
Discussing the challenge to Proposition 8 as well as challenges to the Defense of Marriage Act, one of which is currently awaiting decision at the First Circuit Court of Appeals, Walker says:
“There seems to be no way in the world it can avoid the federal DOMA,” he said. “It will be decided one way or another. It does seem to me the notion of people deciding to get married without regard to gender is an idea whose time has come and is ever more accepted.”
Walker suggested that while review of DOMA is assured, since the Perry decision is so narrow – it does not announce a right to marriage equality, only going as far as to say that once the right is found in a state constitution it can’t be taken away – that would make it “reasonable” for the Supreme Court to deny review of the case.