By Scottie Thomaston
AFER just broke the news that tomorrow, there will be an order in Perry v. Brown, the challenge to Proposition 8 that’s currently in the Ninth Circuit:
Here’s where things stand right now: the Ninth Circuit, in a decision by a three-judge panel has affirmed Judge Walker’s decision striking down Proposition 8 as unconstitutional, albeit on narrower grounds than he did. Then, the proponents of Proposition 8 asked the Ninth Circuit for an en banc rehearing, to vacate their decision and put the case before a larger panel of judges on the Ninth Circuit. We have been waiting for the judges to decide whether they will grant the en banc rehearing and start the whole process over, or let the three-judge panel’s decision written by Judge Reinhardt stand.
Tomorrow, we will likely find out what the judges decided regarding the en banc hearing. If they voted to rehear the case, the current narrowly-written decision by Judge Reinhardt goes away and a new panel will convene, featuring a random selection of ten judges with the addition of Chief Judge Kozinski overseeing the proceedings. There would be new briefings and oral arguments in the case at that point, so the process would be long and drawn out. The issues that would be at stake in a new rehearing would be: whether proponents have Article 3 standing as ballot initiative proponents to bring the appeal in the first place, and whether or not Judge Walker’s decision should be affirmed. If rehearing is granted, the en banc panel could affirm Judge Walker’s decision, or they could reject it on the grounds discussed in Judge Smith’s dissent. After new briefing and new argument and new deliberations over the decision, they would issue a new and final decision in the case that could then result in a petition for certiorari (or ‘review’) at the Supreme Court. Depending on what the final decision ruled, it’s unclear whether the Supreme Court would take up the case or not.
Alternatively, tomorrow the Ninth Circuit could issue an order saying that en banc rehearing was denied. If that happens, Judge Reinhardt’s narrow opinion stands, and the proponents of Proposition 8 can then petition for certiorari at the Supreme Court. If the Supreme Court were to deny review, the Ninth Circuit’s decision would stand, and Proposition 8 would be struck down. Gay and lesbian couples would be allowed to marry in California. If the Supreme Court grants review, there will be briefing and oral argument and a decision next year.
Tomorrow, we will have more as soon as the new order is released by the Ninth Circuit.