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The Top 10 Questions on the Next Steps in the Prop 8 Trial

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After major rulings like Tuesday's Ninth Circuit Court of Appeals decision to strike down Prop 8 as unconstitutional, there are always many questions that surface in the comments here at Prop8TrialTracker.com and elsewhere on what this means and what comes next. The Prop8TrialTracker.com staff took a look at many of those questions, consulted with our friends in the legal community, and put together a list for your perusal. (If we've missed any, feel free to add them in the comments, and we'll do our best to answer them.)

1. Everyone says the losing side (Prop 8's proponents) can now appeal to the Ninth Circuit en banc. I thought the Ninth Circuit just ruled.

A randomly selected three-judge panel made up of Ninth Circuit judges just ruled 2-1 that Prop 8 is unconstitutional. But the Ninth Circuit is made up of several dozen judges. En banc is a term referring to when all the judges hear a case. When it comes to the Ninth Circuit, if the request for an en banc hearing is granted, 11 judges from the Ninth Circuit will convene to take a look at the case, which may involve a hearing.

2. What's the timeline for that?

It usually takes months for the en banc reconsideration to be completed. If a party asks for en banc review, the request is sent to all the active judges on the court. Before a vote takes place, the judges often exchange memos on whether to take the case en banc. If they take it, names are drawn for the panel, and a whole new series of briefs are usually filed, which takes a few more months. Then they hold oral arguments and issue a decision. It is really almost like starting the whole appeal all over again.

3. What happens if the Ninth Circuit doesn't take an en banc appeal?

The losing side can appeal to the U.S. Supreme Court.

4. If the Ninth Circuit takes the case en banc and they rule, what happens after they rule?

The losing side can appeal to the U.S. Supreme Court.

5. Can the losing side from Tuesday's Ninth Circuit panel decision just go straight to the Supreme Court and not appeal to the Ninth Circuit en banc at all?

Yes.

6. Will the Supreme Court take the case?

There are many different opinions about that. Many legal experts note the limited scope of Tuesday's Ninth Circuit panel decision. Note that the Court explicitly said it was not making a ruling on same-sex marriage in general, but instead ruled on this one constitutional amendment (Proposition 8, passed by voters in 2008). In fact, Judge Reinhardt, writing for the majority, wrote:

Whether under the Constitution same-sex couples may ever be denied the right to marry, a right that has long been enjoyed by opposite-sex couples, is an important and highly controversial question. It is currently a matter of great debate in our nation, and an issue over which people of good will may disagree, sometimes strongly. Of course, when questions of constitutional law are necessary to the resolution of a case, courts may not and should not abstain from deciding them simply because they are controversial. We need not and do not answer the broader question in this case, however, because California had already committed to same-sex couples both the incidents of marriage and the official designation of "marriage," and Proposition 8's only effect was to take away that important and legally significant designation, while leaving in place all of its incidents. This unique and strictly limited effect of Proposition 8 allows us to address the amendment's constitutionality on narrow grounds.

Note also that the Court did not apply its ruling to the states covered in the Ninth Circuit to say "all of the laws banning same-sex marriage do not comply with the Equal Protection clause of the 14th Amendment to the U.S. Constitution and are therefore unconstitutional." Instead, the Ninth Circuit panel limited the scope of its ruling to Prop 8.

What does that mean with respect to the Supreme Court? It means, according to many legal experts, that the Court is less likely to take the case. That combined with the fact that over 99 percent of all cases filed for Supreme Court review are rejected for consideration means the Court may not take the case, in which case Tuesday's Ninth Circuit panel decision (or the decision of a full en banc review panel, if there is one) would stand. Of course, other legal experts believe the Court would take up the issue.

7. So what does that mean for same-sex marriage in California if the Supreme Court does not take the case?

If the Supreme Court does not take the case and there is no Ninth Circuit en banc review (or there is a ruling from en banc review that Prop 8 is unconstitutional along the lines of Tuesday's decision), Tuesday's decision would become final, Prop 8 would fall, the stay would be lifted, and same-sex couples in California could marry once again.

8. What's the timeline for the Supreme Court?

The losing party has up to 90 days to ask the Supreme Court to take the case. It then usually takes a couple of months at least for the Supreme Court to decide whether to take a case. The party opposing Supreme Court review gets to file a brief saying why the Supreme Court should not take the case, and amicus briefs can be filed on both sides, as well. Also, the Court does not do any business from the end of June to September. If all that briefing is not completed before the Court's summer recess begins, then it will not even consider whether to take the case until it comes back in September. That all sets up for a decision in 2013 at the earliest.

9. Is there any indication of how the Supreme Court might rule?

Many legal minds have remarked how both Judge Walker's decision as well as Judge Reinhardt's opinion on Tuesday were along the lines of Justice Kennedy's arguments with respect to cases like Romer v. Evans, the landmark case that struck down Amendment 2 in Colorado. Attorney Adam Bonin, writing at DailyKos, best encapsulates this widely remarked opinion as he notes:

This is a decision which the Supreme Court -- if it hears the case at all -- will affirm. It's written in Justice Kennedy's sweet spot, and I would not be surprised to see the Chief Justice and even Justice Alito potentially adhering to a precedent that said that if Romer remains good law, Prop 8 cannot stand.

On the other hand, there is a good chance same-sex marriage advocates will lose, and lose big. Adam goes on to note:

Am I disappointed this panel didn't go further? Not really. No one knows where the Supreme Court as a whole is on marriage equality. And, in particular, we can't be sure just where Justice Kennedy is on marriage equality, and on this he is the key vote. He has made clear that he believes in the role of the Supreme Court to be a leader on issues of social justice -- whether in expanding gay rights or in looking to international norms to scale back America's death penalty -- and in this case Kennedy's grandiosity could be marriage equality's best friend.



But I wasn't willing to take that chance. For all we know, Justices Breyer and Ginsburg might not be ready to go that far. Moreover, you can't always rely on Justice Kennedy, who is a conservative, after all. Maybe he recoils from changing the national definition of marriage.

The bottom line is, no, there is never a "sure" indication of how the Court will rule, though Tuesday's opinion helps solidify various guesses. Does the Ninth Circuit panel's decision "set up" for a favorable ruling at the Supreme Court if it takes the case? Most likely, yes. Does that mean the Supreme Court will affirm Tuesday's ruling? There is a better chance. Does it mean the Supreme Court will "go big" and strike down laws across the country banning same-sex marriage, if it takes the case at all? Not necessarily.

10. So while this is all happening, the stay on yesterday's decision is still in effect and same-sex couples cannot marry?

Yes, the stay is still in effect. Footnote 27 in the opinion says that the previously issued stay remains in effect pending issuance of the mandate. The mandate issues seven days after the deadline for filing a petition for rehearing expires, or seven days after a petition for rehearing is denied, whichever is later. It's generally expected that proponents will ask for a further stay from the Ninth Circuit, and if that is not granted, they will ask the Supreme Court.

This piece originally appeared at the Courage Campaign Institute's Prop8TrialTracker.com.