Processing the Proposition's Process

Although Wednesday's decision declaring Proposition 8 unconstitutional was historic, it was only the first step in a long journey before the decision is final

The ruling by U.S. District Court Judge Vaughn Walker in Perry v. Schwarzenegger declaring Proposition 8 unconstitutional, while celebrated by opponents of the ban on same-sex marriages, is but the first step of a lengthy journey that this case will take before it ends.

The next step actually happened the day before the ruling came down. On Tuesday, the proponents of Proposition 8 – who intervened in the case when none of the sued California officials chose to defend the law – filed paperwork asking Walker to put in place a stay keeping the decision from going into effect until they could appeal the ruling. Because of the timing of the filing, the entire filing was only relevant ”should the Court enter judgment for Plaintiffs.”

The court did so on Wednesday, but not before an attorney for the plaintiffs could fire off a letter to Walker noting that the request to stay the ruling was ”obviously premature” and asking for the opportunity to respond to the request ”[i]f the Court is inclined to consider Proponents’ request.”

Walker issued an order at the time of his decision asking all of the parties to respond to the request for a stay with arguments in favor of or against the stay by today, Aug. 6. Walker ordered that his judgment in the case – which requires that, immediately, the state of California no longer enforce Proposition 8 – not go into effect until the proponents’ motion for the stay ”has been decided.”

Even if Walker decides to deny the request for a stay pending appeal, the proponents additionally have asked for a seven-day stay to appeal that denial to the ”Ninth Circuit and, if necessary, the Supreme Court.”

All of this procedural debate only gets to a decision about whether Walker’s decision goes into effect immediately or is put in a holding pattern until the Ninth Circuit can consider the case. Even if the decision does go into effect immediately, Proposition 8 could later be resurrected if Walker’s decision on the merits of the plaintiffs’ case is later overturned.

The challenge to the merits of Wednesday’s decision already has begun, as the proponents on Thursday filed their formal notice that they are appealing Walker’s ruling to the U.S. Court of Appeals for the Ninth Circuit.

The Ninth Circuit, which is the largest appellate court in the country, will then begin its process for considering appeals. This means that the parties will submit arguments to the court in writing, and the three-judge panel assigned to hear the appeal will then decide whether or not oral arguments will be held in the case.

Also, it’s important to note that a similar process is likely to be occurring with any appeal of the Gill v. Office of Personnel Management decision striking down Section 3 of the Defense of Marriage Act. Because of the timing of the cases and the usual time involved in processing appeals in the relative circuits, it is likely – though by no means certain – that Gill will be advancing more quickly on this path than Perry.

The judges will decide – with specifics dependent upon the proponents’ arguments on appeal – whether any of Walker’s factual findings were clearly erroneous. If so, they can reassess those factual findings, of which there were many. The judges will then look anew at the legal conclusions reached by Walker – at base, whether Proposition 8 violates the Due Process and Equal Protection clauses of the U.S. Constitution in light of the facts of the case. Although they will likely refer to his decision, they need not defer to his legal conclusions at all.

Once the three-judge panel issues its decision, the party or parties unsuccessful on appeal could seek a review of the decision by an en banc panel of the court. Usually, en banc appeals involve all of the active judges on the court, but the Ninth Circuit has a unique ”limited en banc” procedure in which 11 of the circuit’s judges are selected at random to hear the appeal. This is done due to the size of the Ninth Circuit and the large number of judges that sit on the court. The decision to hear the case en banc is discretionary, meaning the judges would take a vote whether or not to hear the case in that manner.

After that consideration or in lieu of even attempting it, the unsuccessful party can petition the U.S. Supreme Court to hear the case. At that point, the parties submit written arguments explaining to the court why the justices should or should not hear the case. Then, if four of the nine justices agree to hear the case, another round of briefing occurs, with the parties and outside organizations and individuals – submitting amicus curiae, or ”friend of the court,” briefs – arguing the merits of the case to the justices. Oral arguments are then set and held at the Supreme Court, and some time later a decision is handed down.

Only then, if the opponents of Proposition 8 are successful, will the decision handed down in Perry on Wednesday be final.

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