Prop 8 is still unconstitutional.

Thanks for the HuffPost link, ericb. It broke everything down quite well.
No one is certain if the Supreme Court would grant review of the case as it currently stands. Judge Reinhardt's opinion for the three-judge Ninth Circuit panel is very narrow, and the holding is specific to California's unique legal circumstances. A denial of rehearing in this case leaves the decision California-specific, and there may not be four Justices -- the number needed to grant certiorari -- who want to visit an issue that's so limited in scope. On the other hand, the panel's decision did strike down an amendment to a constitution of an enormous state involving a contentious issue. And allowing gay couples to marry in California would nearly double the amount of people in the United States who live in an area that allows same-sex marriage.
I suspect the Supremes will hear the case.

MSNBC: [The Federal court said that the] ban discriminated against gays and lesbians and served no purpose other than to “lessen the status and human dignity of gays and lesbians.” It rejected the key argument by ban supporters that Prop 8 furthered "responsible procreation."

I'm so glad that two Federal judges called this ban out for what it really is: discriminatory bullshit.
posted by zarq at 11:10 AM on June 5, 2012 [3 favorites]

whoops... that should be 3 judge panel, not 3 court panel.

Also: yay for the 3 judge panel and the 9th circuit. That said I don't have much hope with regards to a potential SCOTUS ruling.
posted by Hairy Lobster at 11:10 AM on June 5, 2012

So... what does this mean today? Is gay marriage still illegal in CA until the Supreme Court does or does not hear the case? Or is the ruling now valid, and can we start with the gay marrying already?
posted by aspo at 11:15 AM on June 5, 2012

BTW -- Dustin Lance Black's traveling Prop. 8 play, "8" (which was the subject of this FPP) will be broadcast on the radio this month.

"A recording by L.A. Theatre Works of the March 3 performance in Los Angeles will be broadcast in the coming days on 90.7 KPFK in Southern California, 89.7 WGBH in Boston, 91.5 WBEZ in Chicago, 94.9 KUOW in Seattle, 91.1 KRCB in San Francisco, 89.3 WPFW in Washington, D.C.; and over 100 other markets nationwide. June is Gay Pride Month."

posted by ericb at 11:16 AM on June 5, 2012

Yeah, we pretty much saw this one coming. Usually when there's this long of a delay, so I'm told, it's because the circuit has denied rehearing but wants to give time for judges to write their dissents. But the dissents here were weak and petty, so whatevs.

The other worry I've heard voiced is the nightmare scenario where both DOMA and Prop 8 go to the court at the same time, the court strikes down DOMA and overturns the Prop 8 decision (restoring prop 8, and essentially requiring a vote in every state to win marriage).
posted by klangklangston at 11:16 AM on June 5, 2012 [1 favorite]

Hairy Lobster: That said I don't have much hope with regards to a potential SCOTUS ruling.

Interestingly enough, WSJ predicted, back in 2010, that "the justices will rule 5-4, in a decision written by Justice Kennedy, that there is a constitutional right to same-sex marriage." Their reasoning, from someone who hasn't tracked SCOTUS decisions and actions, sounds pretty decent. LA Times has a more recent set of predictions, from February 8, 2012, outlining some of the chances for and against the repeal of Prop 8.
posted by filthy light thief at 11:16 AM on June 5, 2012 [3 favorites]

aspo: So... what does this mean today?

From the decision (first link):

The mandate is stayed for ninety days pending the filing of a petition for writ of certiorari in the Supreme Court. If such a petition is filed, the stay shall continue until final disposition by the Supreme Court.

So, no gay marriage for 90 more days, unless the Supreme Court takes it. If they do, no marrying until they're done with the case.

Otherwise, at 91 days, gays can marry in California.
posted by Malor at 11:21 AM on June 5, 2012 [6 favorites]

Sorry, I should say... no gay marrying unless the whackjobs file an appeal. Once the appeal is filed, the stay remains in place until the Supremes either refuse the case, or take it and actively decide it.

If no appeal is filed, gays can marry at 91 days, but the chance of that happening is just about zero.
posted by Malor at 11:23 AM on June 5, 2012

No gay marriage for 90 more days unless the anti-prop-8 side asks the Supreme court to take it. The stay can't expire while the sides are waiting for the Court to decide whether or not to take the case.
posted by Holy Zarquon's Singing Fish at 11:23 AM on June 5, 2012

One of [Kennedy's] opinions lauded the intimacy between same-sex couples and demanded "respect for their private lives," provoking Justice Antonin Scalia to accuse him of having "signed on to the so-called homosexual agenda."

Christ, what an asshole.
posted by Trurl at 11:24 AM on June 5, 2012 [18 favorites]

Why has the justice system never learned how to distribute a negative sign?

What are you talking about? They aren't deciding to allow gay marriage, they saying that they are not going to review a prior decision that allowed gay marriage by overturning a voter approved ban. Maybe you feel that's a quadruple negative or something but it actually does describe what they are doing.

Anyway, why on earth would the suprime court get involved in this? I mean, this was a decision by a state court about a state petition to amend the state constitution, that was overturned because it violated the state constitution.

overturns the Prop 8 decision (restoring prop 8, and essentially requiring a vote in every state to win marriage).

Except... the situation with prop 8 only had to do with California's constitution, not the rest of the country.
posted by delmoi at 11:27 AM on June 5, 2012

Trurl: "Christ, what an asshole"

"We wanna pitcher, not a belly itcher!"
We wanna justice, not a mucky-muck-sis!"

I got nothin'.
posted by notsnot at 11:29 AM on June 5, 2012 [1 favorite]

why on earth would the suprime court get involved in this?

Opposition to the "homosexual agenda".
posted by Trurl at 11:29 AM on June 5, 2012 [1 favorite]

Worth keeping in mind that there's a current challenge to Section 3 of the Defense of Marriage Act which passed the First Circuit in Boston and is also pending review by the US SCOTUS. If they choose to hear that case, they could theoretically make an overarching ruling for marriage equality on a federal level. Such a ruling would encompass all 50 states.

Meanwhile, the First Circuit judges unanimously voted that Congress is not allowed to create a loophole for the states to discriminate against people, and that it is unconstitutional for states to deny federal benefits to same-sex couples. So it appears DOMA is already in serious trouble, since the ruling nullified the legality of section 3, and on what look to be very secure grounds.

Ironic, considering that Section 2, the recognition of gay marriages across state lines, is why DOMA was passed in the first place.

While the Prop 8 case is local, the 1st Circuit court isn't. And I believe (although I could be wrong, that a ruling about DOMA could conceivably invalidate all other state decisions on marriage equality.
posted by zarq at 11:30 AM on June 5, 2012 [1 favorite]

This is not unconfusing, but I don't not think this is not unbad news.

I don't think this is not incorrect. I don't not expect you are not unopposed to the not unattempted act of not not repealing the not unsuccessfully passed proposal to not allow non-hetero marriage. If that non-trivial assumption isn't incorrect, this would be not be unbad news because it doesn't fail to uphold the repeal not unrelated to the unconstitutionality of the unrepealed amendment.
posted by burnmp3s at 11:33 AM on June 5, 2012 [5 favorites]

So which Southern governor is going to stand on the courthouse steps to keep same-sex couples from getting marriage licenses?
posted by Trurl at 11:35 AM on June 5, 2012 [1 favorite]

zarq: "Such a ruling would encompass all 50 states."

From my understanding, it wouldn't create or eliminate gay marriage from any of the 50 states. It would only reaffirm the states' rights to legalize gay marriages. It would already remain illegal in the places where state laws prohibit it.

However, married gay couples would be granted federal rights and benefits, which is why the case is a big deal.
posted by schmod at 11:38 AM on June 5, 2012 [3 favorites]

Trurl: "Christ, what an asshole"

No doubt. Like his whole life is a detailed "Choose Your Own Adventure" where at any possible case he chooses the Extreme Asshole choice... and he doesn't even bother to hold his fingers as a bookmark at the choice point in case he's wrong.

Recently I was surprised when I did a little navel gazing and was surprised to find that this was one of my most favorited comments ever. Obviously I still think it applies.
posted by MCMikeNamara at 11:39 AM on June 5, 2012 [3 favorites]

I don't think this is not incorrect....

Is there a word for the feeling you get when you read a piece of text, and you end up running in circles, then having to turn it into an equation and balance out the negations while wishing that repeated negations behaved merely as intensifiers, rather than inversions?

Because right now, I think that the gerbil powering my brain is simultaneously alive and dead.
posted by frimble at 11:40 AM on June 5, 2012 [6 favorites]

Presumably, the defeat of DOMA would allow LGBT couples to be married in other states (CA, MA, etc) and return home and still be recognized as a married couple, on the grounds of the full faith and credit clause of the Constitution.

Beyond that, would SCOTUS invalidating Prop 8 invalidate similar anti-gay marriage state constitutional amendments around the country?
posted by SirOmega at 11:42 AM on June 5, 2012

SirOmega: " Beyond that, would SCOTUS invalidating Prop 8 invalidate similar anti-gay marriage state constitutional amendments around the country?"

Would depend on how they constructed the ruling. But it seems unlikely.
posted by zarq at 11:43 AM on June 5, 2012

It would depend on their rationale. Currently, the ruling overturning Prop 8 says it's unconstitutional to let gay people marry and then say "whoops, just kidding, you can have civil unions but marriage is just for the Heterosexual Master Race." It's narrowly construed enough that an amendment which enshrines the no-gay-marriage status quo, or which outlaws both civil unions and same-sex marriage, would pass muster.
posted by Holy Zarquon's Singing Fish at 11:45 AM on June 5, 2012

Now the whackjobs can appeal it to the Supreme Court, and what will happen at that level is hard to predict, but it seems likely that the amendment will be upheld by the conservative justices, and the whackjobs will win.

According to the NYT, the Supreme Court is thought to be split 4-4, with Kennedy the deciding vote.
posted by drjimmy11 at 11:46 AM on June 5, 2012

schmod: "From my understanding, it wouldn't create or eliminate gay marriage from any of the 50 states. It would only reaffirm the states' rights to legalize gay marriages. It would already remain illegal in the places where state laws prohibit it.

However, married gay couples would be granted federal rights and benefits, which is why the case is a big deal."

Ah! Ok. Thanks.

I'm not a lawyer. So I hope this doesn't sound too stupid:

Is it at all possible that an effective argument could be made that by denying same-sex couples the right to marry, the state is illegally denying them access to federal benefits?
posted by zarq at 11:46 AM on June 5, 2012 [1 favorite]

source
posted by drjimmy11 at 11:47 AM on June 5, 2012

Is it at all possible that an effective argument could be made that by denying same-sex couples the right to marry, the state is illegally denying them access to federal benefits?

What it will finally take, I think, is a Supreme Court ruling that any state which disallows gay marriage is violating the Equal Protection clause of the U.S. Constitution. No matter what you put in your state Constitution, it can be overruled by the federal one.

So yeah, kind of. But I don't think either of these cases directly address the issue in such a broad way.
posted by drjimmy11 at 11:51 AM on June 5, 2012 [1 favorite]

Does anyone have a copy of that subversive homosexual agenda? I think it's the one that calls out, in bullet point format, a desire to spend their lives with a dedicated partner, building a community and contributing to society. And I believe raising children in a loving household is a optional point under the subheading "mutual love and respect."
posted by Kokopuff at 11:51 AM on June 5, 2012 [4 favorites]

According to the NYT, the Supreme Court is thought to be split 4-4, with Kennedy the deciding vote.

As I've said before: Considering that Kennedy's questions during the health care oral arguments were more or less identical to the GOP talking points, I don't have any faith that he'll be siding with gay marriage on this one.
posted by zombieflanders at 11:52 AM on June 5, 2012 [1 favorite]

schmod: "From my understanding, it wouldn't create or eliminate gay marriage from any of the 50 states. It would only reaffirm the states' rights to legalize gay marriages. It would already remain illegal in the places where state laws prohibit it. "

Just like how Rowe v. Wade didn't create or eliminate abortions? I was under the impression that when the Supreme Court says people have a constitutional right to something, it doesn't come with the caveat of "oh, unless you think otherwise, whatever".
posted by Plutor at 11:59 AM on June 5, 2012

Worth the read ...

Proposition 8 and DOMA Cases: Would It Be More Favorable for One to Reach SCOTUS First?
posted by ericb at 12:05 PM on June 5, 2012 [1 favorite]

The court can strike down DOMA without recognizing a fundamental right to gay marriage, though. All DOMA says is that: (a) a state does not have to recognize a same-sex marriage performed in another state; and (b) the federal government does not have to treat same-sex couples who are legally married under state law as "married" for purposes of federal benefits. Strike down both of those provisions and you're still left with gay marriage as a state-by-state proposition. Although de facto it becomes less meaningful when a couple can get married elsewhere and receive equal treatment at home, we're not dealing with a situation where the court is being asked to out-and-out rule on a constitutional right to marriage.
posted by Holy Zarquon's Singing Fish at 12:07 PM on June 5, 2012 [1 favorite]

I am still of the opinion that acceptance of cert bodes well for supporters of gay rights. Four justices must agree to accept certiorari. It is hard to imagine any of the group of Scalia-Thomas-Roberts-Alito wanting to accept certiorari. As insecure as proponents of gay marriage are about Kennedy's position, I'd think gay marriage opponents' would be even less secure. Kennedy, after all, wrote Romer v. Evans, and, even more significantly, wrote Lawrence v. Texas. He'd really, really have to back off from his previous opinions were he to side with the conversative bloc on this case.

As a result, I think it is more likely that the Ginsburg-Sotomayor-Breyer-Kagan group votes for cert because they believe they have Kennedy's vote in the bag. I think it's a little bit like a game of chicken with neither side being comfortable enough with Kennedy's position to pull the trigger. There is little incentive for the liberal wing to accept cert if all it wants to do is narrowly affirm the Ninth Circuit's ruling. The ruling is sufficiently narrow that it won't easily apply to other states. If the liberal wing does accept cert I think it will be because they think at worst the narrow holding will be affirmed, and at best the holding can be broadened.

So while I think the most likely result is a denial of cert, I think that if cert is granted, it will be the liberal wing of the Court that does it. As far as I know, the votes on acceptance or denial of cert are not public (although I could be wrong about this).

I expect that cert will be denied, and proponents of gay marriage will see this as a victory because the ruling will stand. Opponent of gay marriage will say that it was a pragmatic decision that will allow for the effects of the decision to play out and for other circuits to weigh in on similar issues, and that it really isn't that big of a deal anyway since it only applies to California.

I'm personally a lot more leery about the First Circuit DOMA decision, as the 1st circuit in that case just sort of made up a new standard for constitutional review--not quite rational basis, not quite heightened scrutiny--and one can imagine the Supreme Court finding ample justification for jumping all over that (not that the Supreme Court hasn't been guilty of that itself, of course!). If it were up to me, I'd simply say that this fails the rational basis test.
posted by MoonOrb at 12:08 PM on June 5, 2012 [5 favorites]

Plutor: "Just like how Rowe v. Wade didn't create or eliminate abortions? I was under the impression that when the Supreme Court says people have a constitutional right to something, it doesn't come with the caveat of "oh, unless you think otherwise, whatever"."

Yes, but that's not the issue being decided in the DOMA case. That's a very narrow case concerning the constitutionality of a single part of a single federal law, and says nothing about the states' rights to override it.

Also, WRT Kennedy, consider that the legal ground of DOMA and Prop 8 is very shaky, to the point where no serious legal argument can be made in favor of them. It's a law does nothing except to discriminate, which the court generally doesn't look very highly upon. The prior ruling in Lawrence v. Texas only reaffirms that stance with a specific focus on gay rights -- it's not the government's position to comment on the morality of homosexuality.

Even as a supporter of healthcare reform, I can see how that would be much more contentious from a legal perspective. The commerce clause is open to lots of interpretation, while the equal protection clause is pretty black and white. Even though Kennedy might be sympathetic to one GOP argument, he could very easily side with the side of equality here, given that the legal argument against Prop 8 is a whole lot stronger than the argument for the Insurance Mandate.
posted by schmod at 12:13 PM on June 5, 2012 [1 favorite]

Anyway, why on earth would the suprime court get involved in this? I mean, this was a decision by a state court about a state petition to amend the state constitution, that was overturned because it violated the state constitution.

Wrong. You have no idea what you're talking about. An amendment to the state constitution that violated the state constitution? That doesn't even begin to make sense.

Perry v. Schwarzenegger is a suit that was filed in federal court by gay persons who are arguing that California's constitutional ban on gay marriage violates their rights under the Constitution of the United States.

As insecure as proponents of gay marriage are about Kennedy's position, I'd think gay marriage opponents' would be even less secure. Kennedy, after all, wrote Romer v. Evans, and, even more significantly, wrote Lawrence v. Texas. He'd really, really have to back off from his previous opinions were he to side with the conversative bloc on this case.

Especially when he basically laid out a legal roadmap for litigating gay marriage in the latter case.
posted by anigbrowl at 12:15 PM on June 5, 2012 [4 favorites]

Now in French.

Plus ça change, plus c'est la même chose.
posted by googly at 12:19 PM on June 5, 2012 [9 favorites]

Otherwise, at 91 days, gays can marry in California.

Should read: Otherwise, at 91 days, everybody can marry in California.

As someone more famous than me put it:

Gay marriage, or as I like to call it: Marriage...

posted by Blue_Villain at 12:21 PM on June 5, 2012 [13 favorites]

suprime

This is how I imagine Optimus is greeted by the other Transformers.
posted by brain_drain at 12:24 PM on June 5, 2012 [11 favorites]

The 9th Circuit denied the request to hear the Prop 8 case after a majority of its judges, the digit sum of whose total count is 7, voted against it. The Supreme court may rule on the case in the 6th month of next year if a petition for certioriari is filed. As usual these days it'll probably be a 5:4 decision. This all started with a 3 court panel's 2:1 decision to declare California's ban on gay marriage a violation of the civil rights of gays and lesbians.

Oh.
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 12:28 PM on June 5, 2012 [1 favorite]

Hairy Lobster: "Maybe it would help putting things in numerical order?

The 9th Circuit denied the request to hear the Prop 8 case after a majority of its judges, the digit sum of whose total count is 7, voted against it. The Supreme court may rule on the case in the 6th month of next year if a petition for certioriari is filed. As usual these days it'll probably be a 5:4 decision. This all started with a 3 court panel's 2:1 decision to declare California's ban on gay marriage a violation of the civil rights of gays and lesbians."

That makes zero sense.

Sorry, I'm not trying to be the negative one here.
posted by IAmBroom at 12:33 PM on June 5, 2012 [6 favorites]

I can be negative too.
posted by Edison Carter at 12:34 PM on June 5, 2012 [5 favorites]

Trurl: "One of [Kennedy's] opinions lauded the intimacy between same-sex couples and demanded "respect for their private lives," provoking Justice Antonin Scalia to accuse him of having "signed on to the so-called homosexual agenda."

Christ, what an asshole."

It isn't an ad hominem when it isn't against a Homō.

Ad culum?
posted by IAmBroom at 12:41 PM on June 5, 2012

Andrew Pugno, the chief counsel for Protect Marriage and the main author of Prop 8 (so I've read but can't find a link right now) is running for State Assembly today. Of my district. You're damn right I voted against him.
posted by Big_B at 12:51 PM on June 5, 2012 [2 favorites]

It isn't an ad hominem when it isn't against a Homō.

...or, maybe can we recognize that even humans who have opinons or practices with which we disagree continue nevertheless to share a common humanity with us? Honestly, that's what the movement is all about, no?
posted by tivalasvegas at 12:54 PM on June 5, 2012

We have no idea how SCOTUS would rule on this, because it is bound to be a procedural question rather than a substantive one, and we don't yet know what the procedural question will be. Most likely they'll just deny cert, because they only want to take on SSM if there's a circuit court split on the matter, but even if they took this they could almost certainly tailor the ruling narrowly enough to apply only to California.
posted by Navelgazer at 12:54 PM on June 5, 2012 [1 favorite]

"Except... the situation with prop 8 only had to do with California's constitution, not the rest of the country."

Well, sort of, but it depends on the ruling. What Prop 8's narrow ruling is is that you can't have marriage and then take it away, which may also affect places like Hawaii and the current round of referenda aimed at reversing court decisions.

"It is hard to imagine any of the group of Scalia-Thomas-Roberts-Alito wanting to accept certiorari."

Not at all — the federal government just overturned an amendment to a state constitution. That's some serious red meat to those four.
posted by klangklangston at 1:27 PM on June 5, 2012

klangklangston, I'm saying it's hard to imagine that group wanting to accept certiorari because of their lack of assurance that they will get the necessary fifth vote, not because they don't care about the issue.

If they knew that Kennedy would side with them, I'd tend to agree with you.
posted by MoonOrb at 1:36 PM on June 5, 2012 [1 favorite]

Most likely they'll just deny cert, because they only want to take on SSM if there's a circuit court split on the matter

I am not a lawyer, and (I'm pretty sure) you are. Still, I think this is wrong: SCOTUS will take this case regardless of whether there's a circuit split. The 9th Circuit's decision effectively created a split within its own Circuit, between California, where denying same sex marriage is due to animus and invidious discrimination, and all the other states in the 9th that also ban same sex marriage, just not by constitutional amendment.

Of course, I'm not a lawyer, so my confidence may just be due to the Dunning-Krueger effect.
posted by anotherpanacea at 1:45 PM on June 5, 2012

A little background here, since things seem to be confusing some.

Generally, in the US, you are allowed access to a trial court, and you may appeal that trial court's ruling once. After that, you must ask for a motion to bring the matter to the court, and the court can refuse.

So. The California Supreme Court, in In re Marriage Cases rules that barring gay marriage is unconstitutional under the California constitution. It also, interestingly enough, rules that marriage is a right.

In response, a ballot measure, Proposition 8 (2008) is brought to amend the California Constitution to add section 7.5 to the Article I of the California Constitution, which states that "Only marriage between a man and a woman is valid or recognized in California." Proposition 8 passes narrowly.

Several "married" couples file suit, and in one, Strauss v. Horton, the court is asked to decide if Prop 8 was an amendment (within the scope of the ballot box) or a revision (not within scope), if it violates separation of powers, if previously valid marriages between same sex couples are still valid, and most importantly, can the voters override inalienable rights, which (see In re... above) marriage has been declared to be.

This suit was directed against the state, in the form of Mark Horton of the State Registrar of Vital Statistics. The State Attorney General is allowed to intervene in such cases as a matter of course -- the AG's job is to be the Attorney for the State, after all. The State AG does so, and in response, state that 1) Prop 8 should not be overturned on the revision/amendment or separation of powers ground, 2) That previously valid marriages, under the Grandfather Clause, should remain valid, but surprisingly, 3) that Prop 8 should be stricken as violating the rights of California citizens.

Alas, this could not be left to be. ProjectMarriage.Com asked for permission to intervene, and that was granted, because they felt that the state was refusing to defend the proposition. In fact, the State *was* refusing to defend it. They moved that Prop 8 should not be overruled, and that all former marriages to the contrary of Art I Sect 7.5 be declared null and void.

The finally ruling comes down in May, 2009. Proposition 8 was valid, but under the grandfather clause, so were any same sex marriages performed until the date of the election. It also affirmed that this applied solely to marriage, and domestic partnerships were completely unaffected by Proposition 8.

After this, a new case is brought, this time in the 9th (in full, the US Court of Appeals for the Ninth Circuit) against the state. This is Perry v. Schwarzenegger, which is amended after the elections in 2010 to become Perry v. Brown. The plaintiffs here asserted that Prop 8 violated the Equal Protection Clause of the US Constitution.

Things got very messy here because everyone and their mother, it seems, wanted to intervene. Two Prop 8 supporters didn't trust the state to defend the matter, and ProtectMarriage.com was allowed to intervene. Several groups moved to intervene for the plaintiffs, including most of the groups involved in the cases above and the City of San Francisco, which was in fact allowed to intervene. Eventually, it all shakes out. Hearings are held.

On June 16th, Judge Vaughn Walker ruled that Proposition 8 violated the Due Process and Equal Protection clauses of the US Constitution and overturned it. There was then a big argument over who actually had standing to appeal. The usual party is the original defendants, but both the former and current governors had no interest in doing so. On August 12th, the defendant-intervenors asked for a stay, and got it, to figure out if they could appeal. So, they asked the 9th, and the 9th actually defers this question back to the California Supreme Court -- was it valid for these non-government intervenors to in fact intervene? Answer: Yes. So, the appeal continued. Then the defenders asked that Judge Stephen Reinhardt be removed from the panel because of his liberal leanings. Answer:No. Finally, on February 7th, they rule 2-1 sustaining the original appeal, thus, Prop 8 is (still) unconstitutional. The majority opinion was written very narrowly, based solely on the "state" not showing any valid reason that an otherwise available right should be restricted.

That brings us to today. A motion was made to the entire 9th Circuit asking it to hear an appeal. This appeal would go to the entire panel, which is called an "en banc" appeal. The defendants have to ask, because having appealed and lost, they no longer have a right to automatically be allowed to appeal. They can (and did) request that the decision be reviewed by the entire panel, but the panel voted on allowing the en banc rehearing, and that vote came out against. So, the 9th is done with this case, and Prop 8 remains overturned. Three members of the Panel, Judges O'Scannlain, Bybee and Bea, dissented from this order, but that's 3 out of 26 -- and two of the concurring justices wrote a "dissent of the dissent."

However, the 9th Circuit did explicitly stayed the ruling overturning Proposition 8 for 90 days to allow the defendants and their intervenors time to appeal for a writ of certiorari from the US Supreme Court.

So, what's next. A request for cert and SCOTUS to get involved, of course.

If the writ is refused, then this is over, and Proposition 8 is dead, and there is a narrow precedent against this sitting in the 9th Circuit. I suspect this is what will happen, unless Roberts et.al. is confident that Kennedy will rule with them. Otherwise, there's a chance that a much larger scope ruling could happen if Kennedy was to agree with the...let's just say least conservative four that this matter should be dealt with, it could result in same sex marriages being made legal once and for all. All that refusing cert does is sustain the 9th, for now. Actually accepting the matter could result in a lot more.

The very narrow construction of the original trial is also held to be in favor of denial -- since it was very carefully written to address only California's situation, it doesn't really stand as a multi-state precedent, and it almost certainly wouldn't stand in contrast to another circuit's rulings, either now or in the future. So, SCOTUS, being fundamentally unwilling to make a ruling unless they have to, has another reason to just say "Go away" and make this matter go away.

So, a good day, but not a win. Not yet.
posted by eriko at 1:46 PM on June 5, 2012 [18 favorites]

Now in French.

Will half-decent Québecois do?

Après ces crisses des maudits pro-Prop 8 ont perdu leurs appel devant la Cour du 9e circuit, les trous de cul ont essayé de retarder l'exécution en faisant appel à la cour intégral (qui en général ne fonctionne pas). C'était complètement fucké en principe, mais maintenant ils peuvent essayer un maudit d'appel devant la Cour suprême. Quatre mois de tabernak accomplie avec succès, colic.
posted by Shepherd at 1:48 PM on June 5, 2012 [3 favorites]

Will half-decent Québecois do?

Only if you say it with an implied question mark at the end of every sentence.
posted by Edison Carter at 2:04 PM on June 5, 2012

fucké

Wow, I had no idea that was a real word in French. Awesome.
posted by Melismata at 2:22 PM on June 5, 2012

Thanks, Eriko.
posted by klangklangston at 2:49 PM on June 5, 2012

I'm confused by all this talk about how the other Justices don't know which way Kennedy would rule. Don't they talk to each other? I imagine some negotiation or feeling each other's opinions out is a normal part of the process... is that wrong? Wouldn't they be like, hey, so, what are you thinking about this case we might see? And then, based on what they hear, vote accordingly?
posted by overglow at 3:06 PM on June 5, 2012

Wouldn't they be like, hey, so, what are you thinking about this case we might see?

Scalia: "Hey Tony, what are you thinkin' on all this gay marriage thing?"

Kennedy: "I haven't decided...could be anything that helps me decide really. Say, your lunch looks pretty good...any chance you're not going to eat that brownie?"

Scalia: "...sure Tony, take it."

What I'm saying is Kennedy, in not disclosing his position to his colleagues, could get a free lunch forever.
posted by Rodrigo Lamaitre at 3:43 PM on June 5, 2012 [2 favorites]

I'm confused by all this talk about how the other Justices don't know which way Kennedy would rule. Don't they talk to each other?

Not like you imagine. When they ask questions at oral argument, they're really addressing each other through the advocates, with the questions being legal shorthand for fairly well-understood arguments. They have case conferences once a week during term where cases are discussed a bit, but the main activity is taking straw polls and deciding on the result of that hwo's going to write the majority opinion. The real communication consists of circulating draft opinions and notes, almost all of which still takes place on paper and is carried back and forth between the justices' offices in the Supreme Court building. I don't think they use email for internal communication (at least, not for jurisprudence) and I hope they never do.
posted by anigbrowl at 3:59 PM on June 5, 2012

Perry v. Schwarzenegger is a suit that was filed in federal court by gay persons who are arguing that California's constitutional ban on gay marriage violates their rights under the Constitution of the United States.

I love that the guy from Kindergarten Cop is now mentioned in legal literature with a straight face.
posted by nestor_makhno at 4:15 PM on June 5, 2012 [4 favorites]

I have a feeling that the supreme court is going to uphold prop 8 and strike down DOMA on faith and credit grounds.
posted by empath at 4:28 PM on June 5, 2012

Side question: Why is it "Perry v. Schwarzenegger" (and now apparently actually "Perry v. Brown"), rather than something like "Perry v. California"?

Lots and lots of cases are like "Dude v. United States", not (e.g.) "Dude v. Hoover".
posted by Flunkie at 5:01 PM on June 5, 2012

So how many years between now and the inevitable Supreme Court ruling? That's what I want to know.
posted by jenfullmoon at 7:05 PM on June 5, 2012

A petition for certiorari will probably be filed within the month, certainly within 60 days. After that, it will be a few months before the justices vote on whether to accept the case or not; usually this is more like six months, but in a high-profile case like this, the Court already knows the issues and whether they think it's worth their time. Then another four to six months or so for written briefs. Then there's oral argument and we wait a few months for a verdict. That's the expedited schedule - many cases linger for half a year or more boefre the court even decides whether to grant the initial petition - but it's the path the health care case has taken, and the two are on reasonably close footing as high-profile issues.
posted by Holy Zarquon's Singing Fish at 7:13 PM on June 5, 2012

(For reference, the health care case had its petition filed last September, and there will probably be a verdict by early-mid July.)
posted by Holy Zarquon's Singing Fish at 7:14 PM on June 5, 2012

What’s the Best Road to Equal Marriage Rights? Superlawyers David Boies and Ted Olson like all the roads that lead to the Supreme Court.
posted by homunculus at 8:28 PM on June 5, 2012

No one is certain if the Supreme Court would grant review of the case as it currently stands.

I am certain the court will NOT grant review, but I like to talk out of my ass.

I'm confused by all this talk about how the other Justices don't know which way Kennedy would rule.

That's because Kennedy himself doesn't know which way he would go. Dude loves this bullshit. Total wanker.
posted by mrgrimm at 10:36 PM on June 5, 2012

Side question: Why is it "Perry v. Schwarzenegger" (and now apparently actually "Perry v. Brown"), rather than something like "Perry v. California"?

Someone will probably be along to correct me shortly but here's the basic gist of it:

Suing a state without their consent falls under sovereign immunity. But we still need to enforce the constitutional protections somehow. So how the hell do you sue a state in federal court for an unconstitutional action if they have sovereign immunity?

In the case of Perry they're suing a whole heap of people (the full list includes the governor, the attorney general, a couple of county clerks) in their official capacity as people carrying out these unconstitutional actions as directed by law. Basically you're asking the court to tell the persons named to stop in their official capacity and strike down the law causing those actions. But they're still state actors! They're enforcing the law as written. So how do you get around sovereign immunity and get injunctive relief from a state committing an unconstitutional action in federal court?

How this is done is through something called the stripping doctrine established in Ex Parte Young. Basically:

When a state official does something that is unconstitutional, the official cannot possibly be doing it in the name of the state, because the Supremacy Clause of the Constitution means that the Constitution overrides all the laws of the states, invalidating any contrary laws. Therefore, when a state official attempts to enforce an unconstitutional law, that individual is stripped of his official character. He becomes merely another citizen who can constitutionally be brought before a court by a party seeking injunctive relief.

The Court, in laying out this doctrine, created two legal fictions:

1. That such a suit is not against the state, but merely against the individual officer, who cannot be acting on behalf of the state when he enforces a law that is unconstitutional; and
2. That an individual can be a state actor for Fourteenth Amendment purposes (which only prohibits unconstitutional act by the state, and those who represent it) while remaining a private person for sovereign immunity purposes.

So basically they said "you can sue a state government official in their official capacity because they're technically not a official of the state when they try to enforce an unconstitutional law but you can do this only if you want to get them to stop".

When you see v. [insert name of state here] in a case it's usually criminal since the defendant has committed an offense towards the people of the state named in the case.

Now could a real lawyer please come in and correct me?
posted by Talez at 12:04 AM on June 6, 2012 [4 favorites]

That's because Kennedy himself doesn't know which way he would go. Dude loves this bullshit. Total wanker.

Please stop this, you're adding nothing whatosever to the discussion by it. Kennedy's opinion in Lawrence v. Texas is famous because it anticipated, and in many ways articulated the arguments for gay marriage: When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.

Even conservative organization such as the one linked to above saw the writing on the wall after that decision. That's why they've been casting around so desperately to identify a rational basis for limiting the scope of marriage that's consistent with making it available to the infertile, the divorced, the elderly, and all the other pairings of people that get married without necessarily furthering the aims of 'traditional' marriage such as childbearing and so forth. The ongoing failure of the sky to fall in any jurisdiction where gay marriage has been made legal pretty much obviates the argument that states have a rational basis for forbidding it, because there can be no rational basis for banning an activity with no discernible deleterious consequences at the social level.
posted by anigbrowl at 2:37 AM on June 6, 2012 [1 favorite]

Blue_Villain: "Otherwise, at 91 days, everybody can marry in California."

Just a point of clarification. Everybody can already marry in California. The problem is they can't get married to the person they want to. See Dan Savage's Seattle marriage license.
posted by Plutor at 5:04 AM on June 6, 2012 [1 favorite]

Plutor, that's nothing but sophistry. You know damned well what Blue-Villain meant.
posted by IAmBroom at 12:29 PM on June 6, 2012

In related news: Another Federal Judge Finds Doma Unconstitutional.
posted by ericb at 3:47 PM on June 6, 2012

IAmBroom: "Plutor, that's nothing but sophistry. You know damned well what Blue-Villain meant."

I know what he meant, but it wasn't what he said.

I only clarified it because I recently had an argument with someone trying to insist that gay marriage bans were worse than miscegenation laws because in the latter case, black people could still get married but only to each other. He couldn't understand why I thought the same was true of gay marriage.
posted by Plutor at 8:26 AM on June 7, 2012

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Prop 8 is still unconstitutional. June 5, 2012 10:48 AM Subscribe

Prop 8 is still unconstitutional.
June 5, 2012 10:48 AM Subscribe