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8 Questions and Answers on the Next Steps in the Prop 8 Case As It Heads Toward the Supreme Court

As always, there is a steady stream of comments and questions about the decision and the future of thecase challenging the constitutionality of Proposition 8. This post addresses the most common ones.
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June 5 saw the Ninth Circuit Court of Appeals deciding not to rehear the Proposition 8 case with an 11-judge en banc panel, clearing the path for the case to proceed to the U.S. Supreme Court. As always, there is a steady stream of comments and questions about the decision and the future of the Perry v. Brown case challenging the constitutionality of Prop 8. This post addresses the most common ones.

1. Is there still a stay? What's the story with that?

Yes. Yesterday's Ninth Circuit order says, "The mandate is stayed for ninety days pending the filing of a petition for writ of certiorari in the Supreme Court. If such a petition is filed, the stay shall continue until final disposition by the Supreme Court."

A petition for writ of certiorari means to request that the U.S. Supreme Court review the case. If the proponents of Prop 8 (those who put it on the 2008 ballot and helped pass it, and now are defendants in the lawsuit) decide to seek review by the Supreme Court (and they have already indicated that they will indeed file a petition for certiorari), the decision will remain stayed if the Supreme Court takes the case until a final decision by the Supreme Court, likely in the summer of 2013. If the Supreme Court does not take the case, the decision will become final, and Prop 8 will end.

2. What will the proponents do next?

The proponents of Prop 8 will file a petition for certiorari at the Supreme Court. They will argue that the Ninth Circuit wrongly decided the legal issues presented in the case, and they will suggest that the Supreme Court should reverse the Ninth Circuit's decision. It takes four votes out of the nine Justices to grant review of cases and set up the case up arguments before the Supreme Court.

3. Is super en banc at the Ninth Circuit still possible?

"Super en banc" means review at the Ninth Circuit by all the judges on the court, rather than a three-judge panel or 11-judge panel. It's theoretically possible under the current rule 35-3. However, the wording of the rule seems to suggest that so-called "super en banc" is only possible after the en banc panel hearing with 11 randomly-selected judges, and that rehearing for an 11-judge panel was just denied by the Ninth Circuit judges, so it seems highly unlikely that this case is headed anywhere except straight to the Supreme Court.

4. By when do Prop 8's proponents have to appeal or go home?

The proponents have 90 days to file for a writ of certiorari at the Supreme Court. After that, if there is no petition filed, the mandate will issue (meaning that the Ninth Circuit's decision will come into effect, Prop 8 will end, and same-sex marriages will resume in California).

5. If Prop 8's proponents appeal, when will the Supreme Court decide whether or not to take the case?

The Supreme Court heads into summer break soon, and given the timeline for appeal, it is unlikely that the Court will decide in conference whether or not to take the case until they return from their summer break around October 2012.

6. By when would the Supreme Court issue a decision if it took the case?

If certiorari is granted, oral arguments are usually heard within four months or so, and the Court almost always issues its decisions by July 4, so a decision would be expected by July 2013.

7. What issues will the Supreme Court decide on appeal if it takes the case?

It's up to them. The Supreme Court has broad discretion to decide which questions it will take up in each case. In the petition for certiorari, there is a list of "questions presented," which are the legal issues the petitioners want the Supreme Court to take on. But just because proponents ask doesn't mean the Supreme Court has to take those specific questions.

Having said that, it's likely that the Supreme Court would decide whether or not proponents have "standing" to appeal the case in federal court, and it's of course likely that the Supreme Court will rule one way or the other on the constitutionality of Prop 8. Beyond those key issues, Supreme Court review is typically limited to the issues raised in the court below. Since the opponents of Prop 8 raised the issue of subjecting laws against gays and lesbians to a higher form of scrutiny, and since they addressed the possibility of a broader ruling on marriage equality, the Supreme Court could decide to accept those questions if they are raised, or introduce the issue. It seems more likely that they would want to decide the narrow issue of Prop 8's constitutionality, but that's just speculation until the Court has their conference and agrees on the questions it will hear.

8. Is it better or worse for the opponents of Prop 8 if the Supreme Court does or does not review the case?

It depends on one's goals and predictions. The Supreme Court is, of course, a mostly conservative court. On many issues it is made up of four moderates and four conservatives with Justice Kennedy as the "swing vote" on a few social issues. Justice Kennedy is, for the most part, fairly conservative. He did write the opinions in the two most recent pro-LGBT cases to come out of the Supreme Court: Romer v. Evans and Lawrence v. Texas, however. If the Supreme Court reviews the case, that presents the possibility that they might uphold Prop 8. If they deny the petition for certiorari, the Ninth Circuit decision stands, and California will have marriage equality as the law in the state.

If the Supreme Court reviews the case, though, there is a real potential of having at least five votes to uphold the Ninth Circuit decision striking down Prop 8. Since Justice Kennedy has written pro-LGBT opinions, it is not outside the realm of possibility that he would apply his own logic from those opinions (especially Romer, on which the Ninth Circuit's opinion heavily relies) to this case and decide things in our favor. Even if we ended up with a narrow Supreme Court opinion striking down Prop 8 in a way that only applies to California, the case could be used as precedent to build on in the future.

On the other hand, there are reasons to hope that the Supreme Court does not take the case. Perhaps chief among them, as I noted at back in February, is the fact that there is a big chance that supporters of marriage equality could lose. No one knows where Anthony Kennedy or the other Justices stand on same-sex marriage, although the Ninth Circuit decision is tailored in such a way to make it more likely to turn a favorable ruling. Why risk it, especially with another case in Nevada that may reach the Court after more states have legalized same-sex marriage, public opinion has kept moving, and the composition of the Court has grown more favorable? Take a strong ruling that Prop 8 is unconstitutional, legalize same-sex marriage in California, and on to the next fight. Second, for the sake of couples who have waited a long time to marry, waiting another year could lead to serious harm (such as, in the case of Ed and Derence, one's unfortunate passing). So it depends on one's goals and predictions regarding the future of same-sex marriage in California and the nation.

Additional reporting provided by Scottie Thomaston and Jacob Combs. This post was originally published at Courage Campaign Institute's

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