Prop. 8 Again Loses With Judges; Next Up Supreme Court?

The refusal by the Ninth Circuit Court of Appeals to rehear the Proposition 8 case means the Supreme Court could rule on marriage equality within the year.

BY Lucas Grindley

June 05 2012 12:00 PM ET

The plaintiffs in Perry v. Brown are California couples Sandy Stier and Kris Perry, plus Paul Katami and Jeff Zarrillo.

The Ninth Circuit Court of Appeals ruled today that it won't rehear a case in which Proposition 8 had been ruled unconstitutional, setting the stage for a possible decision by the U.S. Supreme Court as early as next June.

“This is a monumental day and our case has now entered its final chapter,” said Chad Griffin, founding board member of the American Foundation for Equal Rights, which brought the case, in a conference call with reporters. “The end is now in sight. The question is no longer, if, but when.”

After a three-judge panel in February agreed with Judge Vaughn Walker's 2010 decision in Perry v. Brown that Proposition 8 violated the U.S. Constitution's equal protection clause and the due process clause, proponents of the law sought an "en banc review." Such a review would have required judicial evaluation by the full Ninth Circuit Court of Appeals and could have included 11 appellate judges, but a majority of justices voted to deny the rehearing.

(RELATED PDF: Read the Court's Decision)

A lawyer for the Prop. 8 backers said Tuesday that they “absolutely” planned to take the appeal to the Supreme Court, according to the Associated Press. Brian Raum of the Alliance Defense Fund said he did not know if the defense team would take the entire 90 days to file the petition.

Ted Olson, one of two lead lawyers challenging Prop. 8, said that his team would oppose the appeal to the Supreme Court in order to protect the ruling for same-sex couples in the Ninth Circuit. However, he said that his team would be prepared to make the same “broad and narrow arguments” presented in the district court and the Ninth Circuit if the Supreme Court takes the case.

The Supreme Court will first review the appeal and “probably” make a decision on whether to hear it “probably” in October, said Olson. If the high court decided to hear the case, arguments would happen sometime next spring and the justices would issue a decision by the end of term in June.

“We expect that that decision will vindicate the rights of gays and lesbian to marriage equality in the United States,” said Olson.

The nation's most populous state narrowly passed Prop. 8 in 2008 and banned same-sex marriage, which had already been legal but then became outlawed. A federal challenge to the ban, led by American Foundation for Equal Rights and attorneys Olson and David Boies, has been very successful, with wins in federal district court and in the Ninth Circuit Court of Appeals.

“Today the entire Ninth Circuit has put its force behind the principle that everyone should be able to marry the person they love,” said Boies on the call. “The reasoning of the district court, the reasoning of the majority in the panel, I think, is compelling. It affirms what we’ve said from the beginning -- that marriage is a fundamental right, that prohibiting gays and lesbians from marrying seriously harms them and harms the children they’re raising, and there is no justification for that.”

Olson, Boies and Griffin all noted the sweeping changes in the legal and cultural landscape since the suit was filed in May 2009. Since that time, the number of Americans living in a state with marriage equality has doubled, and current polls consistently show that the majority of voters support the right of same-sex couples to marry, compared to 54% opposed three years ago.

"The atmosphere and the environment has changed enormously in the three years since this suit was filed,” said Olson.  He enumerated changes including the polling, the repeal of “don’t ask, don’t tell,” legal decisions across the country, and President Obama’s “momentous statement” of personal support for marriage equality last month.

“I think that one of the things that’s happened here is that the more the American people understand, think about and appreciate the issues, and understand how much it matters to individuals to be allowed to live with equality and dignity, the more the American people accepts this as the right place for America to be."

The circuit judges who dissented said antigay animus isn't the only conceivable motivation for California banning same-sex marriage. The dissenters claimed the definition of marriage had not been changed "for millennia." Then they cited President Obama, who has long opposed Proposition 8, as their reason it should still be law.

"A few weeks ago, subsequent to oral argument in this case, the President of the United States ignited a media firestorm by announcing that he supports same-sex marriage as a policy matter," they wrote in the dissent. "Drawing less attention, however, were his comments that the Constitution left this matter to the States and that 'one of the things that [he]’d like to see is that [the] conversation continue in a respectful way.' Today our court has silenced any such respectful conversation."

The dissenters said an en banc review would have continued the needed debate. But the judges who denied that opportunity said they are "puzzled" by the reaction.

"We are puzzled by our dissenting colleagues’ unusual reliance on the President’s views regarding the Constitution, especially as the President did not discuss the narrow issue that we decided in our opinion," they wrote. "We held only that under the particular circumstances relating to California's Proposition 8 that measure was invalid."

The court said its ruling is narrowly applied to California but acknowledged it could have broader implications for the U.S. Supreme Court.

"In line with the rules governing judicial resolution of constitutional issues, we did not resolve the fundamental question that both sides asked us to: whether the Constitution prohibits the states from banning same-sex marriage," they wrote. "That question may be decided in the near future, but if so, it should be in some other case, at some other time."

The decision arrived less than one week after the First Circuit Court of Appeals in Boston ruled the Defense of Marriage Act unconstitutional. That case, which focuses on how the federal government treats same-sex couples who are already married in their own states, is widely expected to be heard by the Supreme Court next year, putting it on the same track as the Prop. 8 case, at least in terms of timing.

Boies and Olson said it was “conceivable” but not likely that the high court could combine the two cases. More likely, Olson believed, would be for the Supreme Court to put the cases on the same docket, and have them heard the same day as one another.

“It’s quite possible since they are on a somewhat similar, same track as far as time is concerned that if they court were to feel that those issues were appropriate for it to resolve that they ought to handle them at the same time,” he said.

Boies said the contemporaneous arrival of the DOMA case probably increased the likelihood that Supreme Court would hear the Prop 8. case, and that the court was “probably likely” to hear one or both of the cases. However, he said that if the court were inclined to look only at the narrower questions decided by the Ninth Circuit, that might be a reason for them to pass on the Prop. 8 case.

One thing was certain, according to Olson. The Supreme Court, one day soon, will rule on the question of marriage equality.

“The idea that we have to move forward in courts is the only way,” he said.

Reporting by Julie Bolcer.

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