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Back to Section One | Back to Arts & Entertainment
posted Friday, November 25, 2011 - Volume 39 Issue 47
Prop 8 cases consolidated
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Prop 8 cases consolidated

by Mike Andrew - SGN Staff Writer

Moving to speed up its coming hearings on Prop 8 - California's ban on same-sex marriage - the Ninth Circuit Court of Appeals joined two of its pending cases.

The court announced on November 21 that it would join the appeal of U.S. District Judge Vaughn Walker's ruling that Prop 8 is unconstitutional with a separate challenge to Walker's impartiality.

In a brief order, a three-judge panel consolidated cases that both carry the case title Perry, et al., v. Brown, et al. Both challenge Walker's August 2010 ruling striking down the ballot measure adopted by the state's voters in 2008.

One of the appeals is a plea to overturn the Walker decision on the merits, saying that Walker decided the case wrongly.

The other is also an attempt to overturn Walker's ruling, but with the argument that he should have disqualified himself from ruling on the case - and that, as a result, his ruling must be vacated - because he was not an impartial judge.

The second challenge is based on two facts and a theory. The facts are that Judge Walker is Gay, and that he has been in a long-term relationship with a partner of the same sex.

The theory is that he would likely be interested in marrying his partner, and thus would benefit from his own ruling against the marriage ban.

The judge who succeeded Walker on the case, Chief Judge James Ware of San Francisco, has rejected the claim of partiality.

Prop 8 was an amendment to California's state constitution that limited marriage to opposite-sex couples, thus overturning a state Supreme Court ruling that found a constitutional right for Gay and Lesbian couples to marry.

Both challenges to Walker's ruling are being brought by the sponsors and promoters of Proposition 8. They were granted standing to appeal by the California Supreme Court in a ruling on November 17.

The Ninth Circuit had asked the state court to decide who may appeal court decisions under state law before it would agree to proceed with the appeals hearings. Since that issue is now settled, the Ninth Circuit is now acting to expedite its hearings on the appeals.

Both Prop 8 backers, and the same-sex couples who challenged Prop 8 in Walker's court, had said that they were in favor of consolidating the two cases, so long as it did not result in a delay in the Circuit Court's review.

The submission of written briefs has been completed in both cases, and the Ninth Circuit three-judge panel has held a hearing on the constitutional question. It is thought by some legal experts that a separate hearing on the issue of Judge Walker's impartiality is unlikely.

The panel has asked both sides to submit new legal briefs on the question of whether the Prop 8 backers have a legal right to continue with their appeals. These must be submitted by December 2.

The Ninth Circuit has also scheduled a hearing for December 8 in a third Prop 8 case, involving a challenge by Prop 8 backers to a separate ruling by Judge Ware ordering the videotapes of the original Prop 8 trial to be released.

Media organizations are asking for the release, as are the two same-sex couples who filed the lawsuit.

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