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Prop. 8: Now, on to a decision?

After more than a year of preliminaries, the Ninth Circuit Court on Friday for the first time was in a position to rule on the constitutionality of California’s 2008 ban on same-sex marriage in the state.   What the Court itself had said would be the final round of briefs were filed Friday afternoon, and the Court also has indicated that it will hold no further hearing on the constitutional fate of the ballot measure known as “Proposition 8.”  But it has given no indication just when a decision would actually emerge.

Sixteen months ago, U.S. District Judge Vaughn R. Walker of San Francisco (who has since retired) announced a historic decision striking down Proposition 8 as a violation of the federal Constitution’s guarantees of legal equality and due process.   A variety of appeals to the Circuit Court  from that ruling have been unfolding since then, but there was a nearly year-long delay as the California Supreme Court was drawn in to deal with a separate but related state-law issue.   And one of the pending appeals in the Circuit Court might lead to a bit more delay, even for the now-ready constitutional lawsuit.

All of this, however, is likely to be sorted out fairly soon, and it seems quite likely that the Circuit Court could finish up all that it has before it in just a few weeks, very likely setting the stage for whoever loses to take the controversy on to the Supreme Court.  At this point, however, the Supreme Court’s customary timetable makes it highly improbable that the Justices could be faced with the controversy during their current Term, which is expected to run through late June.   Only if both the Circuit Court and the Supreme Court moved with nearly spectacular speed could the Justices have the controversy before them for decision by the end of this Term.

Three briefs were filed in the Circuit Court on Friday: one from the two same-sex couples who have — successfully so far — challenged Proposition 8 in federal court, one from city and county officials in San Francisco who support the two couples’ challenge, and one from the organizers and now the last remaining courthouse defenders of Proposition 8.   The briefs are, in order, here, here and here.

The filings, ordered by the Circuit Court, focus ultimately on the single question of whether the Proposition 8 backers have a legal right to be in the Circuit Court to challenge Judge Walker’s ruling.  That is an issue under the U.S. Constitution’s Article III, which limits federal courts to deciding cases about which there is a genuine legal controversy between parties that have something real at stake in such a case.  That is what is called the “standing” issue.  The same-sex couples and the San Francisco officials argued that the Proposition 8 backers lack “standing,” but the measure’s backers contended that they do have that right.

If the Circuit Court were now to conclude that the Proposition 8 defenders do not have “standing,” then the Circuit Court would not have jurisdiction to hear their challenge to the Walker ruling, and their appeal would have to be dismissed.   If, however, the Circuit Court were to permit the defenders to go forward with their appeal of the Walker decision, the Circuit Court could proceed directly to a ruling on the merits of the case.   A finding that the proponents do have standing, of course, would not necessarily mean that they would win the case on the merits.

The only thing that now seems a possible glitch in the Circuit Court movement toward a decision on Proposition 8’s fate is that the three-judge panel has scheduled two hearings for next Thursday afternoon on two non-constitutional cases growing out of the Proposition 8 legal battle, and the panel might want to resolve one of those before it moved on to a final decision in the constitutional dispute.   That separate case involves a plea by the Proposition 8 backers that Judge Walker should have been disqualified from conducting the trial on the ballot measure, because he as a gay man in a long-term personal relationship with a gay partner and thus could gain personally from a decision permitting same-sex marriage in California.   His disqualification, the backers have said, would mean that his decision would have to be nullified.

The other issue on which the panel will hold a hearing next week is whether to order the public release — leading to public broadcast — of a videotape recording made of the entire trial before Judge Walker.  That videotape remains under seal at this point.   It has been ordered released by Chief U.S. District Judge James Ware of San Francisco, who succeeded Walker in presiding over the post-trial maneuvering in the Proposition 8 proceedings.

The California Supreme Court is no longer involved in any of the federal court cases.   Asked for its views by the Circuit Court, it ruled last month that the Proposition 8 backers have a right under state law to go to court to defend Proposition 8 in the wake of the decision of California state officials to refuse to make any defense of the measure.   That ruling on state law does not by itself settle the question of whether the ballot measure’s backers have “standing” in federal court — a federal issue that only the federal courts could decide.

In the same-sex couples’ new brief Friday, they argued that the California state court’s ruling cannot salvage their “standing” in federal court, because they cannot show that they personally would be harmed if their ballot measure were struck down.   The San Francisco officials not only agreed with that argument, but also said that, if the ballot measure sponsors are given “standing” to be in federal court, then they would be representing the state and could not continue to make claims that state officials have rejected about the rights of same-sex couples in the state.

The measure’s backers argued in their new filing that the state Supreme Court decision in their favor settles the “standing” issue for federal court, too.  Their main argument was that the U.S. Supreme Court had made clear, in situations like this one, that whether someone seeking to take the place of state officials to defend a ballot measure in court depends upon whether they have that right under state law.  (The California Supreme Court, though not claiming power to decide the federal “standing” issue, agreed that federal courts do depend upon state law to determine that question in cases like this one.)


Recommended Citation: Lyle Denniston, Prop. 8: Now, on to a decision?, SCOTUSblog (Dec. 2, 2011, 11:50 PM),