The Ninth Circuit Court, reacting to legal advice it has just received from the California Supreme Court, on Friday asked both sides in the constitutional dispute over the state’s ban on same-sex marriage to file new briefs on the impact of the state ruling on their case.  In a brief order, the three-judge Circuit panel called for the new 20-page briefs to be filed simultaneously by Dec. 2; no replies or further filings will be permitted, thus indicating that the panel plans to move forward quickly.

On Thursday, the state’s highest court ruled unanimously that the backers of “Proposition 8” have a legal right under state law to be in court to defend their measure’s constitutionality, since officials in California have refused to do so.  That decision came in response to a request from the Circuit Court panel for the state tribunal’s views on that point.  The Circuit Court said the answer would have a bearing on whether the proponents of the measure had a legal right under the federal Constitution’s Article III to be pursuing their pending appeal.

As part of its decision, the state court said it understood the Circuit Court to have indicated that, if the proponents could be in court under state law, they could be in federal court, too.  The state opinion, in fact, quoted a passage in the Circuit Court’s requesting order to that effect.   The new briefing order, however, may be an indication that the Circuit Court itself is not yet convinced that the standing issue before it has been settled conclusively.

After the state court had ruled on Thursday, the Proposition 8 backers filed a letter with the Circuit Court, arguing that it is now plain that, as a result of the ruling in their favor under California law, they are free to go forward with their federal appeal, too.  The letter contended that their “standing to maintain this appeal is now clear.”   As of Saturday evening, lawyers for the two same-sex couples who filed the challenge to Proposition 8 had made no new filings in the Circuit Court, but it seems likely that they will contest the notion that the federal standing issue has been settled definitively.  In any event, the two sides will have a chance to spell out where they stand on the standing issue under Article III when they file the new briefs called for by the Circuit Court on Friday.

The Circuit Court has other issues pending before it that have grown out of the constitutional dispute over Proposition 8.   The most important of the other questions is a claim by the Proposition 8 backers that the federal judge in San Francisco who struck down the gay marriage ban had no authority to try and decide the case, because he himself is gay, is in a long-term relationship with another man, and thus could benefit personally from his ruling allow gays to marry in California.   His ruling against Proposition 8, the proponents of the measure said, should now be stricken from the books.   The challenged judge was District Judge Vaughn R. Walker, who has since retired from the Circuit Court.

Chief U.S. District Judge James Ware of San Francisco, who is handling further developments in the Proposition 8 case now that Judge Walker has left the bench, has rejected the challenge, and the Proposition 8 backers have now appealed that to the Circuit Court, separate from the already-pending case on whether Walker was right or wrong on the merits of the constitutional dispute.

Both sides have urged the Circuit Court to consider together the two main disputes that, as of now, are proceeding on separate tracks: the underlying appeal contesting Walker’s decision, and the issue over whether the judge should have disqualified himself and thus his ruling should be vacated in its entirety.   The same-sex couples proposed consolidation of the two cases in  this document filed Nov. 1 in the disqualification case, and the backers of Proposition 8 did so in this filing Friday in their pending appeal on the merits of Walker’s ruling.

Moving on a somewhat slower track in the Circuit Court is the issue of whether the videotape made of the trial before Judge Walker should be released for public broadcast.  A separate decision by Judge Ware had ordered release of the videotapes, but that has been put on hold by the Circuit Court while it reviews it.


Posted in Featured, Cases in the Pipeline

Recommended Citation: Lyle Denniston, Prop. 8 case moves to next phase, SCOTUSblog (Nov. 19, 2011, 5:47 PM),