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DECISION DAY: Court to Decide If Prop. 8 Constitutional

DECISION DAY: Court to Decide If Prop. 8 Constitutional


Nearly three years after Kristin Perry, Sandra Stier, Paul Katami, and Jeff Zarrillo sued California state officials after they were denied marriage licenses, a three-judge panel with the Ninth Circuit Court of Appeals will rule Tuesday on whether Proposition 8 violated the U.S. Constitution by stripping gay Californians of the right to marry.

A decision is expected to be released by 10 a.m. pacific time.

Regardless of whether the panel upholds or reverses now-retired U.S. district judge Vaughn Walker's decision striking down the 2008 ballot measure, the ruling is almost certain to trigger an appeal to the U.S. Supreme Court.

The court announced Monday that it would be filing its opinion on the constitutionality of Prop. 8, as well as several ancillary rulings, including whether Walker's decision should be vacated because he is gay and in a long-term relationship -- an open secret during the trial, though one that was not raised publicly until the San Francisco Chronicle published an article on the matter two years ago today.

Attorneys representing Yes on 8, the coalition that backed Prop. 8, argued in court filings last spring that Walker had a personal stake in the outcome of the case and should have recused himself. U.S. district judge James Ware, who has handled matters involving the case, Perry v. Brown, since Judge Walker retired last year, summarily dismissed those arguments.

Should they lose, the Prop. 8 proponents are expected to seek an injunction against the Ninth Circuit's ruling as they continue their appeals, further delaying the right to marry for the two plaintiff couples in the case, as well as thousands of other gay couples in California.

The ninth circuit panel will also rule on whether Prop. 8 supporters have legal standing to defend the ballot measure in court when state officials decided not to do so.

However, given that the court announced it has decided on the merits of the case, legal observers note that the panel has also likely decided that Prop. 8 supporters indeed are entitled to defend the initiative and that their attempt to vacate Walker's decision has fallen flat, as expected.

The American Foundation for Equal Rights, which organized and financed the Prop. 8 legal challenge, will be holding two press conferences -- one in Los Angeles, followed by another in San Francisco -- directly following release of the court's opinion. A webcast of the conferences can be found here.

Last week, the ninth circuit panel ruled that recordings of the Prop. 8 trial cannot be made public. However, because current court rules mandate that documents filed under seal become public 10 years after a case is closed, the recordings could be released August 4, 2020 -- a decade after Walker's landmark decision.

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