Prop 8 Case Enters Final Stage

Tue. June 5, 2012 12:00 AM
by Waymon Hudson

Another huge moment in the legal battle for marriage equality rights came down as the Ninth Circuit Court of Appeals decided today it will not rehear AFER's federal constitutional challenge to California's Proposition 8 . The filing was related to whether the court should rehear the case Perry v. Brown's three-judge panel decision striking down Prop 8 as unconstitutional en banc, meaning a randomly-appointed panel of 11 Ninth Circuit judges would rehear the case at the request of anti-equality opponents.

Today's decision means two things could happen:
1) Couples start getting married again in California; or
2) The case for marriage equality goes to the U.S. Supreme Court.

Most legal analysts and case watchers agree that proponents for Prop 8 will move the case to the Supreme Court. Since the en banc rehearing was denied, anti-equality activists have 90 days to file a petition for certiorari to the Supreme Court hoping to reverse the lower courts decisions. From there, Justices at the Supreme Court would have a conference to decide whether or not to grant review sometime after the court's summer break in October. This would be followed within a few months by oral arguments, with a final decision being issued by June or July 2013. But that is all contingent on if the Supreme Court decides to take up the case at all, something not guaranteed.

As Scottie Thomaston Courage Campaign Institute's explains, "No one is certain if the Supreme Court would grant review of the case as it currently stands. Judge Reinhardt's opinion for the three-judge Ninth Circuit panel is very narrow and the holding is specific to California's unique legal circumstances," says Thomaston. "A denial of rehearing in this case leaves the decision California-specific and there may not be four Justices – the number needed to grant certiorari – who want to visit an issue that's so limited in scope. On the other hand, the panel's decision did strike down an amendment to a constitution of an enormous state involving a contentious issue. And allowing gay couples to marry in California would nearly double the amount of people in the United States who live in an area that allows same-sex marriage."

It's a high stakes waiting game now for the next moves in this years long case. Prop 8 passed in the November 2008 state elections, overturning the California Supreme Court's ruling that same-sex couples have a constitutional right to marry. Prop 8 stripped the existing right to marry from same-sex couples, yet left the 18,000 gay couples previously married still legally wed. The legal challenge to Prop 8 was initially filed on May 22, 2009 by the American Foundation for Equal Rights. The trial began in January of 2010, with United States District Court Judge Vaughn R. Walker overturning Proposition 8 on August 4, 2010. The Ninth Circuit's issued its ruling on February 7 of this year. All the rulings, while in favor of marriage rights for same-sex couples, have also included a stay on marriage equality commencing until the case works its way fully through the court system, including today's denial to rehear the case en banc.

The long awaited last step to the Supreme Court could go many ways depending on how the court takes the issue, whether on the narrow grounds decided by the Ninth Circuit or on the broader issue of a fundamental right to marry. Now we once again wait to see how the case moves forward, even as other challenges to discriminatory marriage bans make their way through courts at every level-- from multiple challenges to the odious "Defense of Marriage Act" to state-level cases like the recent lawsuit here in Illinois.

One thing is clear, the tide has turned for marriage equality. We must continue to fight and build on the political, legal, and social momentum we have to keep pushing forward.

Image used with permission from


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