The U.S. Court of Appeals for the 9th Circuit has denied a petition filed by the official proponents of Proposition 8 seeking rehearing in Perry v. Brown by a larger panel of circuit judges (referred to as "en banc"). However, the court stayed its mandate in the case "for ninety days pending the filing of a petition for writ of certiorari in the Supreme Court. If such a petition is file," said the court, "the stay shall continue until final disposition by the Supreme Court." This means that it will be months, at least, and perhaps a year or more before same-sex couples can marry in California.
The denial of rehearing en banc means that the 9th Circuit's final word on Proposition 8 was spoken on February 7, 2012, by a three-judge panel in Perry v. Brown, 671 F.3d 1052. The panel affirmed Chief District Judge Vaughan Walker's ruling that Proposition 8 is unconstitutional as a violation of the Equal Protection Clause. On Election Day in November 2008, California voters placed into their state constitution a provision that the only marriages "valid or recognized" in California were those between one man and one woman, thus rescinding the right of same-sex couples to marry that had been recognized by the California Supreme Court in May 2008. Several thousand same-sex couples were married in the months leading up to Election Day, and the California Supreme Court subsequently ruled that those marriages, which were valid when they were performed, remained valid, but that Proposition 8's enactment did not itself violate the California Constitution.
The American Foundation for Equal Rights (AFER), an organization formed to seek the invalidation of Proposition 8, filed suit immediately after the California Supreme Court's decision was announced, seeking a declaration from the federal courts that Proposition 8 violated the 14th Amendment of the federal Constitution. AFER retained Ted Olson, former U.S. Solicitor General, and David Boies, a leading advocate who had argued in opposition to Olson in the Supreme Court case that decided the 2000 presidential election, Bush v. Gore, as co-counsel to attack Proposition 8.
Judge Walker's decision in August 2010 held that same-sex couples have a right to marry, based on both the due process and equal protection clauses of the 14th Amendment. In a lengthy opinion based on a very full trial record, Walker adopted detailed findings of fact refuting all the purported justifications for denying same-sex couples the right to marry. Although he found that heightened or strict scrutiny might apply based on the argument that same-sex couples were being deprived of a fundamental right to marry or that discrimination based on sexual orientation was suspect, he ultimately concluded that Proposition 8 could not even survive the less demanding rationality test that had been approved by the 9th Circuit in earlier cases as the appropriate standard for evaluating sexual orientation discrimination claims.
After Judge Walker issued his decision, the Proponents of Proposition 8, who had been allowed to intervene as co-defendants when the state government officials who were named in the complaint refused to defend Prop 8, sought and obtained a stay of Judge Walker's decision from the 9th Circuit. The 9th Circuit's final decision on the appeal was delayed while the court sought an advisory opinion from the California Supreme Court about whether the proponents of a ballot proposition have legal standing to seek judicial review of a decision striking down their proposition. The California Supreme Court responded affirmatively, and the 9th Circuit's three-judge panel then ruled on the merits.
The panel's February 7 decision affirmed Judge Walker's conclusion that the enactment of Proposition 8 was unconstitutional, but employed different reasoning. Unlike Judge Walker, the 9th Circuit did not rule that same-sex couples have a right to marry as a matter of federal constitutional law. Refocusing the case, the court instead asked whether the state had violated the 14th Amendment by voting to rescind the right to marry after it had been granted. The court likened this case to Romer v. Evans, the U.S. Supreme Court's 1996 decision which struck down Colorado Amendment 2, a referendum measure that rescinded from gay people in Colorado the right to seek any protection from discrimination. The 9th Circuit concluded, as had the Supreme Court in Romer, that there was no rational, non-discriminatory reason to rescind the rights involved in the case.
By thus narrowing the case's scope, and making its decision turn heavily on Judge Walker's factual findings about the nature of the Proponents' campaign to pass Prop 8, the three-judge panel made it less likely that the U.S. Supreme Court would be interested in hearing the case.
The 9th Circuit's decision to deny en banc review was not unanimous. Circuit Judge N. Randy Smith, the dissenter on the three-judge panel, voted to grant the petition, and Circuit Judge O'Scannlain, joined by Judges Bybee and Bea, filed a dissent from the Order denying en banc review. O'Scannlain invoked President Barack Obama's recent public endorsement for same-sex marriage, and his comment that "one of the things" he would "like to see is — that conversation continue in a respectful way." O'Scannlain argued that denying the petition had "silenced any such respectful conversation," at least among the 9th Circuit judges. He characterized the panel decision as being "based on a reading of Romer that would be unrecognizable to the Justices who joined it, to those who dissented from it, and to the judges from sister circuits who have since interpreted it." In a one paragraph concurrence, the other two judges from the panel, Reinhardt and Hawkins, said they were "puzzled by our dissenting colleagues' unusual reliance on the President's views regarding the Constitution, especially as the President did not discuss the narrow issue that we decided in our opinion." They expressed the view that the underlying question whether same-sex couples have a constitutional right to marry "may be decided in the near future, but if so, it should be in some other case, at some other time."
Under the Supreme Court's rules, a party dissatisfied with the 9th Circuit's ruling has up to 90 days to file a petition for certiorari with the Supreme Court. After a petition for certiorari has been filed, anyone can file a brief with the Court within 30 days opposing the petition. It is possible, of course, for any party to the case to file a petition for a writ of certiorari. The top candidates to file in this case would be the Proponents of Proposition 8, formally named ProtectMarriage.com – Yes on 8, who are determined to defend their constitutional amendment and prevent same-sex marriages from being performed in California.
But AFER can also file a petition for certiorari, if they are eager to get the Supreme Court to consider the broader question that the 9th Circuit panel evaded by their repurposing of the appeal. When AFER filed this lawsuit in 2009, the organization's avowed purpose was to take the question whether same-sex couples have a constitutional right to marry to the U.S. Supreme Court. The 9th Circuit decision, which evaded answering that question, would reinstate the right of same-sex couples to marry in California if the Supreme Court either denies review or takes the case and affirms the panel ruling. But if AFER is after the bigger prize, it could file a certiorari petition asking the Supreme Court to affirm Judge Walker's original ruling. Such a ruling by the Supreme Court would potentially invalidate all the state bans on same-sex marriage throughout the United States.
The Supreme Court is highly likely to be considering issues raised by same-sex marriage anyway during its next term, since the Bipartisan Legal Advisory Group (BLAG) of the U.S. House of Representatives will most likely file a petition for certiorari seeking review of the 1st Circuit's May 31 decision holding that Section 3 of the federal Defense of Marriage Act (DOMA) is unconstitutional under the 5th Amendment's equal protection requirement binding on the federal government. Section 3 adopts a definition of "marriage" for all purposes of federal law as the union of one man and one woman, and limits the term "spouse" to a husband or wife of the opposite sex. The 1st Circuit found no justification for the federal government to distinguish between same-sex and different-sex marriages valid under state law, but did not rule on the underlying question of whether same-sex couples have a constitutional right to marry.
The Supreme Court is expected to grant review in the DOMA case, in which a provision of federal law was invalidated by an appeals court having jurisdiction over the New England states of Maine, New Hampshire, Massachusetts, Rhode Island and Puerto Rico. Even the Justice Department, which argued in support of plaintiffs that Section 3 was unconstitutional, is likely to support (or at least not actively oppose) BLAG's petition for certiorari, since it would be desirable to have a ruling binding nationwide on the unconstitutionality of Section 3. It could be administratively awkward for the federal government to be recognizing married same-sex couples within the 1st Circuit but not in neighboring Vermont, New York or Connecticut or other jurisdictions allowing same-sex marriage.
It seems less likely that the Supreme Court would be interested in reviewing the Prop 8 case, given its narrower scope and application to just one state. If the Court did grant review, it would be free to reframe the question more broadly to focus on whether same-sex couples have a right to marry, or it could practice judicial restraint and limit itself to determining whether the 9th Circuit panel correctly applied the reasoning of Romer v. Evans to find that Prop 8's rescission of rights was invalid.
Either way, these rulings promise to give even greater prominence to the same-sex marriage issue in this year's presidential and congressional elections, and may turn the Supreme Court term starting in October 2012 into one of great consequence for the course of gay rights in America.