Today, by 10 a.m. PST (1 p.m. EST), the 9th Circuit will release its decision on the constitutionality of Proposition 8, the 2008 voter-approved ban on same-sex marriage in California. It's been some time since the actual constitutional merits of Proposition 8 have been discussed at the 9th Circuit, so here's a brief update of what to expect. (A longer, in-depth history of the Prop 8 trial, Perry v. Brown can be found here. In essence, however, there have been three main tracks of the trial leading up to today's decision.)
The first and most important one, by far, has to do with the constitutionality of Prop 8. In his Aug. 4, 2010, decision, District Court Judge Vaughn Walker struck down Prop 8 as unconstitutional under both the Due Process and Equal Protection clauses of the U.S. Constitution's 14th amendment. In his opinion, Judge Walker presented 80 findings of fact regarding same-sex marriage, which included discussions about the immutability of sexual orientation, the ability of same-sex couples to be good parents, and the inequality of providing LGBT couples with civil unions as opposed to full marriages. These findings of fact are highly significant, because while appellate courts can overturn a lower court's decision based on its findings of law, they usually defer to those courts' findings of fact. In today's decision, the 9th Circuit will determine whether or not Judge Walker was correct in finding California's ban on same-sex marriage to be unconstitutional. (You can read Prop8TrialTracker.com's coverage of the 9th Circuit hearing on constitutionality here and here.)
The second track is that the court must also determine whether the proponents of Proposition 8 have standing under federal law to appeal Judge Walker's decision. When the Perry case was argued before the 9th Circuit, the three-judge panel questioned the proponents' standing, asking whether they could demonstrate how striking down Proposition 8 causes them immediate harm. (Essentially, it's not enough to say striking down Prop 8 would harm marriages in general, because that doesn't show particularized injury.) The panel decided in December 2010 to put the question to the California Supreme Court, essentially asking them for an advisory opinion regarding the proponents' standing under state law. On Nov. 17, the California Supreme Court ruled that the proponents do have standing to appeal the decision under state law. The distinction between state and federal law is significant here. The California Supreme Court's decision is in no way binding on the 9th Circuit, which must still decide independently if the proponents have standing under federal law. Nonetheless, the state court decision is one the appellate panel could point to if it decided to grant standing to the proponents, and many observers believe the panel has indicated that it would essentially mirror the standing decision made by the California Supreme Court. In today's ruling, the 9th Circuit will decide whether the proponents have standing to pursue an appeal. If they do not, the court will not even address the constitutional challenge. (However, most legal observers believe the panel will grant standing to the proponents, based on the decision of the California Supreme Court.)
Finally, the third track of today's ruling will also decide whether District Court Judge James Ware, who took over the case when Judge Walker retired, was correct in denying a motion filed by Prop 8's proponents to overturn Judge Walker's decision on the grounds that he failed to disclose that he himself was in a long-term relationship with a man (which he did announce publicly after the decision was released). In a Dec. 8 hearing on the motion to overturn Judge Walker's decision, the 9th Circuit panel seemed deeply skeptical that Judge Walker's ruling should be thrown out because of his orientation and relationship status.
These three tracks of the Perry v. Brown trial will be cleared up in today's ruling. What comes next? The first issue on everyone's minds is whether same-sex couples can wed immediately if Prop 8 is struck down. The answer is that it depends on whether a stay is issued in the case. After Judge Walker issued his decision, a stay on his ruling was also issued that kept Prop 8 in effect as a law until such time that another court struck it down. If the 9th Circuit panel or another court body issues a stay, same-sex couples cannot wed. Many legal observers expect a stay if Prop 8 is struck down; however, it's not entirely certain.
The other issue on everyone's mind is: what comes next? The losing side could appeal the decision in one of two ways. First, they could request what is called an en banc hearing. In most appellate courts, this involves the decision by a panel of judges (in this case, the three-judge panel reviewing the Perry v. Brown case) being reviewed by all the judges on the appeals court. In the 9th Circuit, however (by far the largest appellate court in the country), an en banc hearing involves 11 of the court's judges. In order for this review to occur, a majority of all active judges in the 9th Circuit must vote to rehear it. Many legal observers believe it is unlikely the court would allow an en banc hearing. The losing party could then appeal the case to the U.S. Supreme Court. The Supreme Court has discretion over which cases it decides to hear, and hears arguments in only about 1 percent of all petitions filed for certiorari (judicial review) each term, so there is no guarantee it would take up an appeal of Perry. If four Supreme Court Justices agree to hear the case, the Supreme Court will review the case. If the 9th Circuit were to uphold the district court ruling but narrowly apply its reasoning only to California, it is unlikely that the Supreme Court would take up the appeal. If the 9th Circuit were to recognize a right to marriage equality in the U.S. Constitution for its entire jurisdiction, which includes almost all of the western United States, the Supreme Court would be more likely to accept an appeal of the decision.
Be sure to check out Courage Campaign Institute's Prop8TrialTracker.com, which has full coverage throughout the day. You'll be able to find the full text of the ruling as soon as it's released, as well as updates and analysis from legal experts regarding the decision.
This post was co-written with Prop8TrialTracker.com's Jacob Combs.