The U.S. Supreme Court will decide whether California’s Proposition 8 marriage amendment is constitutional and whether the federal government can refuse to recognize gay couples’ marriages for tax purposes and other reasons, the court announced Friday.
Decisions in both cases, by the court’s practice, are expected by the end of June.
The questions of federal standing aside, the Supreme Court should make a definitive ruling – one way or the other.
Do the states have the right to decide their own marriage laws, or is there a federal right to a same sex marriage?
We will see in late June 2013.
But, there are OUTS!
The SCOTUSblog live blog reports: “Prop. 8 is granted. So is Windsor. Those are the only two marriage cases granted.”
SCOTUSBlog’s live blog continues: “Prop. 8 is granted on the petition question — whether 14th Am. bars Calif. from defining marriage in traditional way.” No surprise there — except perhaps to Jeffrey Toobin. The Court then added a question of its own: “Whether the backers of Prop 8 have standing in the case under Art. III.” So the court may avoid ruling on the constitutionality of Prop 8 by saying that the case should not have been allowed to proceed in the first place — which I gather would mean that the lower court decisions are off the books, as there was no jurisdiction in the cases that would allow them to be decided.
A federal appeals court on Tuesday declared California’s same-sex marriage ban to be unconstitutional, putting the bitterly contested, voter-approved law on track for likely consideration by the U.S. Supreme Court.
A three-judge panel of the 9th U.S. Circuit Court of Appeals ruled 2-1 that a lower court judge correctly interpreted the U.S. Constitution and Supreme Court precedents when he declared in 2010 that Proposition 8 was a violation of the civil rights of gays and lesbians.
It was unclear when gay marriages might resume in California. Lawyers for Proposition 8 sponsors and for the two couples who successfully sued to overturn the ban have repeatedly said they would consider appealing to a larger panel of the court and then the U.S. Supreme Court if they did not receive a favorable ruling from the 9th Circuit.
“Although the Constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least a legitimate reason for the passage of a law that treats different classes of people differently. There was no such reason that Proposition 8 could have been enacted,” the ruling states.
The panel also said there was no evidence that former Chief U.S. Judge Vaughn Walker was biased and should have disclosed before he issued his decision that he was gay and in a long-term relationship with another man.
The ruling came more than a year after the appeals court heard arguments in the case.
Proposition 8 backers had asked the 9th Circuit to set aside Walker’s ruling on both constitutional grounds and because of the thorny issue of the judge’s personal life. It was the first instance of an American jurist’s sexual orientation being cited as grounds for overturning a court decision.
Walker publicly revealed he was gay after he retired. However, supporters of the gay marriage ban argued that he had been obliged to previously reveal if he wanted to marry his partner — like the gay couples who sued to overturn the ban.
Walker’s successor as the chief federal judge in Northern California, James Ware, rejected those claims, and the 9th Circuit held a hearing on the conflict-of-interest question in December.
California voters passed Proposition 8 with 52 percent of the vote in November 2008, five months after the state Supreme Court legalized same-sex marriage by striking down a pair of laws that had limited marriage to a man and a woman.
The ballot measure inserted the one man-one woman provision into the California Constitution, thereby overruling the court’s decision. It was the first such ban to take away marriage rights from same-sex couples after they had already secured them and its passage followed the most expensive campaign on a social issue in the nation’s history.
The Williams Institute on Sexual Orientation and the Law, a think tank based at the University of California, Los Angeles, has estimated that 18,000 couples tied the knot during the four-month window before Proposition 8 took effect. The California Supreme Court upheld those marriages, but ruled that voters had properly enacted the law.
Here is the decision:
So, what comes next?
Obviously, a stay in the order while the pro-Proposition 8 attorneys appeal the decision to either the full en banc Ninth Circuit Court of Appeals or directly to the United States Supreme court. This process either way will delay a final decision in the case for at least two years and possibly three.
There is also the probability that gay marriage advocates will go back to the ballot to overturn the voter approved Proposition 8.
More than likely by the Ninth Circuit Court of Appeals.
The 9th U.S. Circuit Court of Appeals is expected to release its opinion on the constitutionality of California’s voter-approved ban on same-sex marriage Tuesday morning.
The appeals court is deciding whether to uphold or reverse a federal judge’s 2010 ruling that Proposition 8, which was approved by voters in 2008, was unconstitutional. Regardless of the outcome, the decision is expected to be appealed to the United States Supreme Court.
The opinion will be posted online at 10 a.m, according to a press release from the court.
Judge Reinhardt and Judge Hawkins will probably vote to affirm Federal District Court Judge Vaughn Walker’s ruling that Proposition 8 is unconstitutional and that Walker did not need to recuse himself (obviously).
The decision will be stayed and the U.S. Supreme Court will take up the issue in the next term beginning in October 2012.
California Republican Governor candidate Meg Whitman discusses gay marriage around 5:15 in this Los Angeles television interview
Patterico raises the issue.
Republican Meg Whitman now has a wedge issue in the California governor’s race, if she chooses to use it.
She also has a more subtle but much stronger issue: the responsibility of elected officials to defend the people’s laws.
Here’s why. The Ninth Circuit’s briefing schedule calls for the last brief to be filed by Prop. 8 supporters on November 1, 2010. The court has ordered the parties to discuss whether the
proposition’s defenders have standing on their own, given that the Attorney General and the Governor failed to fight for the law in court.
But here’s the thing: come November, there will be a new Attorney General in California and perhaps more important, a new Governor. They will probably be sworn in before the appeals are decided. And the identity of the new Governor will probably decide whether California’s elected officials are going to join the appeal. (This assumes that procedural time limits don’t prevent them from joining an ongoing appeal by intervenor defendants. I dont know the answer to this question, but my educated guess is that there would be no procedural bar, as long as the appeal is still live.)
Our current Attorney General, Jerry Brown, refused to defend Prop. 8 and would continue this path as Governor. Meg Whitman, by contrast, was a Prop. 8 supporter. Presumably she would move to join the appeal if elected.
Since Meg Whitman campaigned for California Proposition 8 and presumably donated money to the cause, I would think this issue will raise itself sometime during the campaign. Moreover, Whitman is very close to LDS-Mormon former Massachusetts Governor Mitt Romney and the California LDS community.
My bet is that Whitman uses targeted direct mail to the Pro-Proposition 8 Protect Marriage list shortly before the early voting/absentee voter ballot request time. Also, flyers will appear at many Christian, especially Roman Catholic and LDS churches during this time. Undoubtedly, there will be a sermon/homily or two.
So, the answer is yes.
The 9th Circuit Court of Appeals granted the stay, pending an expedited appeal of the Federal District Court Order that held Proposition 8 violated the United States Constitution.
Appellants’ motion for a stay of the district court’s order of August 4, 2010 pending appeal is GRANTED. The court sua sponte orders that this appeal be expedited pursuant to Federal Rule of Appellate Procedure 2. The provisions of Ninth Circuit Rule 31-2.2(a) (pertaining to grants of time extensions) shall not apply to this appeal. This appeal shall be calendared during the week of December6, 2010, at The James R. Browning Courthouse in San Francisco, California.
The previously established briefing schedule is vacated. The opening brief is now due September 17, 2010. The answering brief is due October 18, 2010. The reply brief is due November 1, 2010. In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing. See Arizonans For Official English v. Arizona, 520 U.S. 43, 66 (1997).
An interesting aside is the matter of standing – whether California Proposition 8 supporters have the right to appeal the decision.
There are two interesting aspects to this issue.
1. There will be an election in November of this year and both the California Attorney General and Governor WILL change. Both California Governor Arnold Schwarzenegger and Attorney General Jerry Brown oppose the stay and support the overturn of California Proposition 8. They both do have standing and a change in office by either Meg Whitman as Governor and Steve Cooley as Attorney General could change the standing issue – as one or both of them may very well flip on the issue.
2. Should the court of appeal agree with the district court that Proposition 8 proponents do NOT have standing to appeal, then they might very well decide that Proposition 8 proponents might not have been allowed to intervene in the trial court – and, thus vacate the entire trial. Hence, the case would have to be tried again.
In the meantime, there will be no further gay marriages in California, as the issue is played out in the political process.