Tuesday's decision by the Ninth Circuit Court of Appeals, denying Prop 8's proponents an en banc review of its earlier ruling that Prop 8 is unconstitutional, means the issue is now likely heading to the U.S. Supreme Court. The Alliance Defense Fund, whose attorneys are part of the ProtectMarriage.com team, said as much the same day when they issued a statement saying they intend to ask the U.S. Supreme Court to review the aforementioned decision.
My gut feeling however is that simply won't happen. Let me be clear about what I mean. I believe that Prop 8's proponents will ask SCOTUS to review the case; I just don't think SCOTUS will agree to take it up.
I'm no lawyer, but thus far in the Prop 8 saga I've been right about Judge Walker's original trial decision, the California Supreme Court's decision to grant Prop 8's proponents standing to appeal and February's decision by the Ninth Circuit to uphold Walker's ruling. On each of these occasions commonsense has prevailed.
During Walker's trial the evidence presented by the plaintiff's legal team, impressively marshaled by AFER, was insurmountable. It made sense that Walker would rule Prop 8 unconstitutional based on what transpired in his courtroom, which he did in August 2010.
Although it created legal precedent at the time, California's Supreme Court ruling in November 2011, granting standing to appeal to Prop 8 proponents and thus enabling them to defend their initiative when both California's governor and attorney general declined to do so, also made sense. Had they not done so they would have handed final say in a judicial process over to the politicians and no judge is ever want to do that.
Tuesday's decision not to grant an en banc review was also made sense given the prevailing political leanings of the Ninth Circuit's judges. After all, why take the time and effort to rehear a case that has already dragged on for over three years when you would simply end up with the same result?
I believe a decision by the U.S. Supreme Court not to take up Perry v. Brown will also be based on commonsense. Firstly, when he wrote the Ninth Circuit opinion upholding Judge Walker's decision, Judge Reinhardt was very careful to make his ruling as narrow as possible. He could have written an opinion that said "gay men and women have the right to marry" and applied it to all the states that full under his jurisdiction, namely Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington. He did not. Reinhardt issued a judgement that was specific to California's situation: where a given right, the result of a state Supreme Court decision, was taken away by a voter initiative.
Why would the U.S. Supreme Court take up such a case?
It would do so if there exists a wider issue to consider, but given Reinhardt's narrow ruling, there really isn't. The same issue isn't occurring frequently across America. Yes, a similar issue is occurring elsewhere, namely the introduction of bans on same-sex marriage through legislation and ballot initiatives across a majority of U.S. states, but digging that out of this case and overruling a majority of those U.S. states is not something I believe the U.S. Supreme Court is ready to do. Not yet.
Moreover on the final page of Tuesday's decision, Judges Reinhardt and Hawkins even say that they have not resolved "... the fundamental question that both sides asked us to: whether the Constitution prohibits the states from banning same-sex marriage. That question may be decided in the near future, but if so, it should be in some other case, at some other time."
So what does that mean for same-sex marriage in California? Well, by my understanding, while an appeal to the U.S. Supreme Court on Tuesday's decision must occur within 90 days, the U.S. Supreme Court will likely not reveal its decision to accept the case or otherwise, before it convenes in October to decide its slate for the then upcoming year.
As such I expect SCOTUS to say they will not consider an appeal of Perry v. Brown in October, just before the U.S. election. Same-sex marriage should then become legal around the same time. Any same-sex Californian couples that have dreamed of a winter wedding might want to start planning their happy day now.
Whilst such a decision will be a victory in one sense, it would be a defeat in another. The hope was that Prop 8 might be the case that leads to a SCOTUS decision legalizing same-sex marriage across the whole of America. That no longer looks likely and Chad Griffin's demeanour at AFER's press conference in February, after the original Ninth Circuit decision, to me said as much. Regardless of whether SCOTUS decides to hear an appeal of Perry v. Brown, California, and America more widely have a huge amount to be grateful to Griffin and his colleagues at AFER for.
On a final note, any October decision by SCOTUS, that in effect legalizes same-sex marriage in California once again, would provide a timely fillip to likely ballot initiatives in Washington and Maryland a few weeks later, where voters are seeking to overturn recently passed same-sex marriage legislation. As such, those votes might become the very first to reject statewide bans on same-sex marriage.