By Jacob Combs and Adam Bink
Last fall’s California Supreme Court ruling puts Perry v. Brown (originally Perry v. Schwarzenegger) back on track at the 9th Circuit. If you’ve been following the case but are a bit confused about all the different dates that have been thrown around, don’t worry — the case is complicated, and there are essentially four different tracks making their way through the courts simultaneously. Here’s an overview of each of these related but unique aspects of the case, and when we can expect to see them back in court.
The case itself (regarding the constitutionality of Proposition 8 on the merits)
The skinny: In 2009, the American Foundation for Equal Rights (AFER) filed suit in the U.S. District Court for the Northern District of California on behalf of two couples, Kristin Perry and Sandra Steir, of Alameda County, and Paul Katami and Jeffery Zarrillo, of Los Angeles. Both couples had been denied licenses by their respective county authorities on the basis of their sexual orientation, as Proposition 8, a constitutional amendment passed in 2008, had amended the California Constitution to recognize marriages only between a man and a woman. Representing the plaintiffs were Ted Olson and David Boies, two well-known attorneys who had been on opposite sides of the landmark Bush v. Gore case that decided the 2000 presidential election.
The non-jury trial took place in January, and included an unprecedented courtroom look into the history of marriage in the United States, the discrimination LGBT people have faced throughout history, and the economics involved in prohibiting or allowing marriage equality in California. On August 4, 2010, Judge Walker ruled in favor of the plaintiffs, striking down Prop 8 as unconstitutional under both the Due Process and Equal Protection clauses of the U.S. Constitution’s 14th amendment. In his opinion, Judge Walker presented 80 findings of fact regarding same-sex marriage, which included discussions about the immutability of sexual orientation, the ability of same-sex couples to be good parents, and the inequality of providing LGBT couples with civil unions as opposed to full marriages. These findings of fact are highly significant, because while appellate courts can overturn a lower court’s decision based on its findings of law, they usually defer to those courts’ findings of fact.
Almost immediately, the proponents of Prop 8 appealed Judge Walker’s decision to the 9th Circuit Court of Appeals. The 9th Circuit stayed the lower court’s injunction against Prop 8 pending appeal, and a 3-judge panel heard oral arguments in the appeal in December of 2010, in which both sides argued their case on the merits. One significant question that the panel asked regarded the standing, or authority, of the proponents of Prop 8 under federal law to appeal Judge Walker’s decision. (For more on the standing issue, see below.) Instead of issuing a ruling, in January the 9th Circuit panel referred (the official term is ‘certified‘) a question to the California Supreme Court as to the proponents’ standing under state law, and the appeal was placed on hold pending the state court’s answer. In March, the California Supreme Court agreed to hear the question sent over by the 9th Circuit, and a hearing date was eventually set for September 6. The plaintiffs requested a speedier timeline, but the California Supreme Court refused to expedite its proceedings on the issue of standing, and eventually the court made its decision, which it issued last Thursday (November 17).
Now that the California Supreme Court decision is in, the appeal at the 9th Circuit can start up again. On November 18, the appeals court notified both parties in the case that their briefs regarding the state court’s decision are due no later than Dec. 2, and explicitly stated that there would be no reply briefs and no consideration for extensions. Since the case’s merits have already been argued fully by both sides, the 9th Circuit does not need to hold another hearing, and could issue its decision on the standing and/or merits (whether Prop 8 is constitutional or not) of the case without having one. Once this occurs, the losing side could appeal the decision in one of two ways. First, they could request what is called an en banc hearing. In most appellate courts, this involves the decision of a panel of judges being reviewed by all the judges on the appeals court; in the 9th Circuit (by far the largest appellate court in the country), an en banc hearing involves 11 of the court’s judges. In order for this review to occur, a majority of all active judges in the 9th Circuit must vote to rehear it. Legal observers believe it is unlikely the court would allow an en banc hearing. The losing party could then appeal the case to the U.S. Supreme Court. Justice Kennedy is the point person for the 9th Circuit, and he could refer the matter to the entire court. The Supreme Court has discretion over which cases it decides to hear, and hears arguments in only about 1% of all petitions filed for certiorari (judicial review) each term, so there is no guarantee it would take up an appeal of Perry. If the 9th Circuit were to uphold the district court ruling but apply its reasoning narrowly to apply only to California, it is unlikely the Supreme Court would take up the appeal. If the 9th Circuit were to recognize a right to marriage equality in the U.S. Constitution for its entire jurisdiction, which includes almost all of the western United States, the Supreme Court would be more likely to accept an appeal of the decision.
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