National Center for Lesbian Rights

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On August 16, 2010, the Ninth Circuit Court of Appeals granted the Proposition 8 proponents’ motion to stay U.S. District Court Judge Vaughn Walker’s decision, which means that same-sex couples in California will not be able to marry while the case is on appeal. However, the Ninth Circuit put the appeal on a fast track and specifically directed the Prop 8 proponents to address “why the appeal should not be dismissed for lack of Article III standing” in their opening brief. That means that the Court will consider whether the decision can be appealed at the same time that it is considering whether Judge Walker’s decision that Prop 8 violates the federal constitution is legally correct.

What is the fast-track schedule set by the Ninth Circuit?

All the briefing must be completed by November 1, 2010 and the oral argument will take place the week of December 6, 2010. Proponents’ opening brief is due September 17. The plaintiffs’ opposing brief is due October 18. The proponents’ reply brief is due November 1.

When can we expect a decision from the Ninth Circuit?

The Ninth Circuit is not required to issue its decision within any particular time frame after oral argument; however, when an appeal is expedited, the Court tends to issue decisions more quickly. That said, it is still likely to take at least a few weeks or months after the oral argument in December for the Court to issue a decision.

What happens after the Ninth Circuit rules? Will the case then go to the Supreme Court?

Once the Ninth Circuit rules, the losing side can ask the United States Supreme Court to hear the case. The Supreme Court then has discretion to take the case or to let the Ninth Circuit’s decision stand.

Which three judges from the Ninth Circuit will decide the Prop 8 appeal?

We don’t know yet which three judges will be on the panel for the Ninth Circuit appeal in the Prop 8 case. It’s possible that it will be the three judges who heard an earlier appeal relating to discovery disputes in the case Judges Berzon, Fisher, and Wardlaw but it also might be a different set of three judges. We won’t know for sure until the week of November 29, when the names of the panel judges will be announced.

Could the same panel that granted the stay also decide the appeal?

The panel of judges that decided the stay was the temporary, rotating “motions panel” that sits for a month at a time and only hears motions that need an immediate response. There have been some past cases in which a motions panel keeps a case, so it is possible, but the more common practice is for an appeal to be assigned to a new panel of judges.

Will the Ninth Circuit decide whether the Prop 8 proponents have standing to bring an appeal before the court decides the other issues in the case?

The motions panel that issued the stay ordered the parties to address in their briefs both the question of standing and the question of whether Prop 8 is unconstitutional. So the argument scheduled for the week of December 6 likely will address both of those issues, and it’s unlikely that the question of standing will be separately decided anytime before that.

If the Ninth Circuit decides that the Prop 8 supporters don’t have standing to bring an appeal, will they be able to appeal that ruling to the Supreme Court? Or does the case stop there?

If the Ninth Circuit decides that Prop 8 proponents don’t have standing to bring an appeal, the proponents could ask the Supreme Court to review that decision, and the Supreme Court would have the option either to hear the appeal or to let the Ninth Circuit’s decision stand.

Will the final decision in this case apply to California only?

Judge Walker’s decision is just about California, but much of his legal analysis and many of his factual findings could be applied to other discriminatory marriage laws across the country. If this case reaches the Supreme Court, and if the Court decides to reach the question of whether Prop 8 is constitutional, and if the Justices ultimately decide that Judge Walker was right that Prop 8 is unconstitutional, they could issue that decision either in broad terms that apply to the whole country or in narrow terms that are limited to California.

Source credit: National Center for Lesbian Rights

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The National Center for Lesbian Rights is a national legal organization committed to advancing the civil and human rights of lesbian, gay, bisexual, and transgender people and their families through litigation, public policy advocacy, and public education.

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