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Prop. 8: Final ruling due

The Ninth Circuit Court will issue a ruling tomorrow — apparently, in a single opinion — to decide the challenge to California’s ban on same-sex marriage, approved by the state’s voters more than three years ago.   In a brief announcement Monday, the Circuit Court said it would issue an opinion at 1 p.m. Tuesday Washington time (10 a.m. in San Francisco) dealing both with the constitutionality of the measure (“Proposition 8”) and with the issue of whether the trial judge should have disqualified himself from the case.

The three-judge panel actually has three issues before it: whether the backers of Proposition 8 had a legal right to appeal the District Court ruling striking down Proposition 8 (the “standing” issue), whether — if “standing” to appeal did exist — the ballot measure is unconstitutional, and whether now-retired District Judge Vaughn R. Walker should have recused and thus whether his ruling should now be vacated by the Circuit Court.

Although the wording of the announcement Monday was not entirely clear and made no promises about the scope of the ruling, it could be interpreted as indicating that the panel will find that the measure’s proponents did have the right to appeal, and thus the panel would be free to move on to rule on the merits and on the disqualification issue.   Given the makeup of the panel and the past records of the three judges, the chances would appear to be quite strong that Proposition 8 would be struck down.

Circuit Judge Stephen R. Reinhardt, perhaps the most liberal of all federal judges, is on the panel, along with Senior Circuit Judge Michael Daly Hawkins and Circuit Judge N. Randy Smith.   Hawkins is considered to be a moderate, and Smith, something of a conservative.    Judge Reinhardt has appeared to be particularly eager for the panel to reach the merits, and that goal was definitely enhanced when the California Supreme Court ruled — when asked by the Circuit Court for advice — that state law allows the sponsors of a ballot measure to go to court to defend the measure when state officials refuse to do so.   California’s top state officials actually oppose the ban, and thus have refused to defend it.  The backers have stood in for them.

While the question of “standing” to appeal in the federal court is an issue under the federal Constitution, not under state law, the state Supreme Court ruling in favor of the backers’ legal stature may prove quite persuasive to the Circuit Court panel as it addresses the question under Article III.   When the Circuit Court passed the state law issue to the state court for a reaction, the panel seemed to suggest that the outcome in the state court might well be decisive on the Article III question.

A final decision by the panel will set up two possible scenarios: a plea by the side that loses for the en banc Ninth Circuit to review the issue, or an attempt by the loser to take the dispute on to the Supreme Court without seeking further review in the Circuit Court.  Given the importance of the issue, en banc review seems to be a real likelihood.  The full Court includes some strong conservative judges, including one who has given federal judges in general advice that they should not read much into Supreme Court rulings favoring gay rights, and at least one of them almost certainly would call for a vote on the issue of further review.  If the Court were to grant en banc review, that would vacate the panel decision.

If either scenario unfolds, the chances that the constitutionality of Proposition 8 could reach the Supreme Court in time for final action during the current Term seem extremely remote.   The Court has taken all of the cases that it plans to review during the remainder of this Term, and it could only deal with Proposition 8 on a highly expedited basis — not a very likely prospect.

Although the constitutionality of same-sex marriage, or of a state’s ban on it, has been at issue in cases across the nation, none has had visibility equal to the courthouse battle over Proposition 8.   Led by two of the nation’s top legal advocates — Washington attorney Theodore B. Olson and New York attorney David Boies — two California same-sex couples brought a sweeping challenge to Proposition 8 in federal court.   That led to the decision in August 2010 by Judge Walker to nullify the ban under the Constitution’s equal protection and due process clauses.

The case has been moving slowly through the Circuit Court since then.  The panel held a hearing on the constitutional issues in December 2010, and on other issues in January of last year.   Last week, the panel released a unanimous opinion barring the public release of a videotape recording made of the trial as it unfolded before Judge Walker.

Since his retirement, Judge Walker has been succeeded on the case in the District Court by Chief Judge James Ware.   It was Judge Ware who rejected the claim of the Proposition 8 backers that Judge Walker should have recused himself from the case, and thus turned down the plea to vacate his ruling entirely.   The ballot measure’s sponsors contend that Judge Walker is gay and has a long-term relationship with a male partner, and thus might personally have had a stake in the question of marriage between partners of the same sex.

There appears to be almost no chance that the Circuit Court would overturn Judge Ware on that point.   Thus, if the Circuit Court agrees with Judge Walker on the merits, the ban would be nullified, pending the possibility of further review in courts with higher authority.

UPDATE: On Monday afternoon, the Circuit Court prematurely released a procedural order denying participation in the case by the county clerk of Imperial County, who had sought to join in to defend Proposition 8.  The order distributed to those on an electronic notification list said the clerk’s plea was being denied as too late.   The Circuit Court later sought to withdraw the order.  The order itself suggested that it was supposed to be released simultaneously with the major ruling that is still due tomorrow.



Recommended Citation: Lyle Denniston, Prop. 8: Final ruling due, SCOTUSblog (Feb. 6, 2012, 3:29 PM),