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Prop. 8: Circuit Court schedule

The Ninth Circuit Court will move directly, without a further public hearing, to rule on two key questions involving the constitutionality of California’s “Proposition 8,” banning same-sex marriage in the state.  The Court, in an announcement Wednesday, laid out plans for its Proposition 8 review from this point on.  The plans do include two hearings, to be held on Dec. 8, but not on the constitutional questions the Circuit Court now has before it.

The three-judge panel held a hearing on Dec. 6, 2010, on two constitutional disputes surrounding the ballot measure approved by California voters three years ago.  Those issues arise in the case of Perry v. Brown (Circuit docket 10-116696).

One is whether Proposition 8 must be struck down under the federal Constitution, and the other is whether the Circuit Court has jurisdiction to rule on that question since an issue has arisen on whether anyone has a legal right to be before the panel.    Tomorrow, the panel is to receive new briefs — from each side simultaneously — that will bear on that second question (which, technically, involves the issue of “standing” to appeal under the Constitution’s Article III).  The briefs are to discuss the impact of a ruling last month by the state Supreme Court in California bolstering the right — under state law — of the backers of Proposition 8 to go to court to defend their measure against constitutional attack.

Once those new briefs are in, the panel seemed to be indicating by its announcement Wednesday, it will then move on to decide the two constitutional questions.  The announcement stressed that “there will be no further argument” in that proceeding.   It also emphasized that, up to now, the three-judge panel has not made a final decision on either question.

U.S. District Judge Vaughn R. Walker, who has since retired, ruled in August of last year that Proposition 8 violates the federal Constitution, by denying equal legal treatment and denying due process to same-sex couples who wish to marry.   Proposition 8’s sponsors have been seeking to overturn that ruling in their attempt to appeal to the Circuit Court.

Besides the constitutional case, the same panel has before it two other cases brought to it by the Proposition 8 backers.  One (docket 11-17255) is an attempt by the ballot measure to overturn a different federal judge’s ruling allowing the public release — and thus public broadcast — of the videotape made of the entire trial before Judge Walker.  That tape has remained sealed since the trial was over, but the same-sex couples who won the case before Judge Walker, along with a coalition of media organizations, are seeking public release of the recording.  Its release is on hold in the meantime.  The Circuit Court said Wednesday that it will hold a hearing on that case at 2:30 p.m. (Pacific time) on Dec. 8.

The other case (docket 11-16577) is a plea by the Proposition 8 backers to throw out entirely Judge Walker’s ruling against Proposition 8, on the argument that he should have been disqualified from conducting the Proposition 8 trial, because he is gay, is in a long-term personal relationship with another man, and was thus in a position to benefit from any decision striking down gay marriages in the state.   That plea has been rejected by the judge who succeeded Walker on the case, Chief District Judge James Ware of San Francisco.   (Judge Ware is also the one who has ordered release of the videotape of the Walker trial.)    The Court said Wednesday it will hold a hearing on that case at 3:30 p.m.  (Pacific time) on Dec. 8.

Both hearings, according to the announcement, will be videotaped “for later broadcast on C-SPAN and the NBC-7 television station in San Diego.”  The Court will also allow still photographs of its hearings.   A  live audio and video feed of the two hearings will be sent to other rooms in the San Francisco federal courthouse, and to viewing sites in federal courthouses in Pasadena, in Portland, Ore., and in Seattle, Wash.

(Thanks to Howard Bashman of How Appealing blog for the alert to this announcement.)

Recommended Citation: Lyle Denniston, Prop. 8: Circuit Court schedule, SCOTUSblog (Dec. 1, 2011, 3:20 PM),