Prop 8: Five Questions (and Brief Answers) to Help Get Through Today's Coming Decision

Posted by Chris Geidner
February 7, 2012 12:15 PM |

[UPDATE: THE NINTH CIRCUIT HAS RULED - "BREAKING: Ninth Circuit Strikes Down Proposition 8 on Narrow Grounds."]

Although the path to get here is a winding one -- and although the details are important -- today's coming decision in the challenge to the constitutionality of Proposition 8 brought by the American Foundation for Equal Rights in Perry v. Brown likely will be confusing.

Thumbnail image for Thumbnail image for ca9.pngHere are five key questions to help getting through the U.S. Court of Appeals for the Ninth Circuit's opinion:

1. Did the appeals court avoid ruling on the constitutionality of Proposition 8?

Today's decision could avoid addressing the constitutionality if it finds either that: (1) now-retired U.S. District Court Judge Vaughn Walker should have recused himself from hearing the case because he is gay and had a long-term partner to whom he was not married or (2) the proponents of Proposition 8 -- the only ones appealing the ruling -- lack standing to bring the appeal.

2. Is Proposition 8 upheld or struck down?

This is the easy one -- but it's also the most important one. The court will be deciding whether to affirm or reverse the trial court decision striking down Proposition 8 as unconstitutional. That decision, by now-retired U.S. District Court Judge Vaughn Walker, struck down Proposition 8 on the grounds that it unconstitutionally infringed on both due process and equal protection rights.

3. How does the court resolve the constitutional question?

If the court affirms Walker's ruling, it doesn't need to use his reasoning. The court could rule in any of a number of ways. It could affirm Walker's ruling and reasoning that Proposition 8 violates the due process "fundamental" right of marriage and the equal protection of the laws against discrimination based on sexual orientation (and/or sex). It could choose to affirm on one but not both of those grounds. Or, it could affirm on an alternative ground not considered by Walker. The most likely of these alternative grounds would be to apply the reasoning of Romer v. Evans, in which the Supreme Court struck down an anti-LGB amendment in Colorado because the court determined it was based only in animus and furthered no legitimate governmental end.

4. What sort of stay of the court's decision is issued, if any?

The court -- as it did when Walker's ruling was appealed to it -- is likely to issue a stay of its decision pending any appeal decision. Watch for this, as it will mean that, regardless of today's ruling, marriages will not begin in California in the coming days.

5. Watch for a statement that the losing party is bringing an appeal.

Although today's opinion will be important, it is almost certain that it will be appealed -- either to the full Ninth Circuit for reconsideration (called en banc consideration) or to the U.S. Supreme Court. In either situation, the court needs to choose to accept the appeal. But, the decision as to whether the losing party goes first for en banc review or proceeds directly to the Supreme Court could expand or shorten the timeline until this case reaches its final resolution.

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