[UPDATE @ 1:45P TUESDAY: BREAKING: Ninth Circuit Passes on Further Review of Prop 8 Case, Setting Up Appeal to Supreme Court]
The U.S. Court of Appeals for the Ninth Circuit is expected to be issuing a filing of some sort in the ongoing challenge to California's Proposition 8 on Tuesday, June 5, at 10 a.m. Pacific Time, a court spokesperson tells Metro Weekly.
The announcement regarding the Perry v. Brown appeal likely relates to the request made by the proponents of Proposition 8 for the appeals court to reconsider the three-judge panel's decision handed down on Feb. 7 that Proposition 8 is unconstitutional -- a fact reinforced by the fact that the court spokesperson notes, "We are advised that this is not a large document."
[UPDATE @ 7:50P: A docket filing confirms that this will relate to the en banc reconsideration request: "An order regarding the petition for rehearing en banc will be filed Tuesday, June 5, 2012, at approximately 10:00 a.m."]
The February decision that Proposition 8 is unconstitutional, if it stands, would allow same-sex couples to, once again, marry in California.
Metro Weekly will post the filing when available, and the filing also should be available at the Ninth Circuit's website.
DENIAL: If the court denies the request, called an en banc rehearing, then the Proposition 8 proponents will have 90 days to consider whether to appeal the case to the Supreme Court. It is likely that the Ninth Circuit -- or, if not, the Supreme Court -- would keep the decision stayed, or on hold, during this time.
Assuming that the proponents would seek Supreme Court review of their appellate loss, they would file a petition for a writ of certiorari. The plaintiffs and the state defendants -- who have opposed Proposition 8's constitutionality -- as well as outside groups and individuals would then be able to file a response to the proponents' filing. The Supreme Court, which generally recesses for the summer by late June, would then consider the petition after that briefing is completed, likely once the justices return in the fall.
GRANT: If the Ninth Circuit decides to grant the request to hear the case en banc, an 11-judge panel of the more than 20 judges of the Ninth Circuit will reconsider the 2-1 appellate decision that "the People of California may not, consistent with the Federal Constitution, add to their state constitution a provision that has no more practical effect than to strip gays and lesbians of their right to use the official designation that the State and society give to committed relationships ...."
The appellate decision striking down Proposition 8 was based upon the reasoning of the Supreme Court in the 1996 case of Romer v. Evans, where the court struck down Colorado's Amendment 2 as unconstitutional. Amendment 2 had prohibited state and local entities from passing sexual orientation protections. The U.S. Supreme Court struck Colorado's Amendment 2 down as a violation of the Fourteenth Amendment's equal protection clause because the amendment's aim was "not to further a proper legislative end but to make [LGB people] unequal to everyone else."
Judge N. Randy Smith dissented from the panel's decision, concluding that there was a rational basis for the amendment.
The appeals court decision, however, was more narrow one than the trial-court opinion. That decision in the case, issued on Aug. 4, 2010, by U.S. District Court Judge Vaughn Walker, broadly found that sexual orientation-based classifications like Proposition 8 should be subjected to heightened scrutiny -- but that Proposition 8 was unconstitutional even under the lowest level of scrutiny: rational basis. Additionally, he found that the constitutional amendment was unconstitutional because it infringed on the fundamental right to marry.*
If the 11-judge panel reconsiders the appeal, it likely would call for a new briefing schedule and could call for a new round of oral arguments in the case. Chief Judge Alex Kozinski and 10 judges selected at random from the circuit bench could expand the three-judge panel's decision to one more similar to Walker's decision, it could keep the decision reached by the majority of the appeals panel, it could reach Judge Smith's conclusion that Proposition 8 is constitutional, or it could fashion a new decision altogether.
BEYOND THE NINTH CIRCUIT: Assuming the losing party under the current three-judge panel's decision or an eventual en banc panel decision requests Supreme Court review, the Supreme Court's denial of the request would leave the Ninth Circuit's final ruling, whatever it might be, in place.
If the court accepts review, which most experts consider less likely with a narrowed Romer-based appellate decision than it would be with a more broadly applicable Walker-type decision, then a full briefing schedule and oral argument would be set.
FINAL NOTE: The announcement comes less than a week after another federal appeals court, the First Circuit in Boston, held that Section 3 of the Defense of Marriage Act is unconstitutional. Although not "marriage" cases, they certainly are cases relating to marriage-related rights and some of the same or similar legal reasoning applies. The 90-day clock for requesting Supreme Court review in those cases -- Gill v. Office of Personnel Management and Massachusetts v. United States -- began on May 31, so a Supreme Court appeal would need to be sought in those cases before an appeal would need to be sought in Perry.
At the same time, if en banc review is denied in Perry on Tuesday, then the timing will be close enough that both cases will, effectively, be reaching the Supreme Court at the same time.
* = A correction to the specific elements of Walker's equal protection ruling was made to this paragraph.