End could be near for Prop 8
 

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posted Friday, September 28, 2012 - Volume 40 Issue 39

End could be near for Prop 8
Appeal of Ninth Circuit strikedown omitted from Supreme Court docket by Mike Andrew - SGN Staff Writer

Perry v. Hollingsworth, the case in which federal courts have ruled California's Prop 8 unconstitutional, is not on the list of cases the U.S. Supreme Court says it will take up this term. The court released the list shortly after a conference held September 24.

The justices will confer again on October 1, after which they will release a list of cases they will definitely not consider. If Perry is on that list, then the decision of the Ninth Circuit Court of Appeals striking down Prop 8 will stand, the Ninth Circuit will lift its stay on the decision, and same-sex couples will once again be able to marry in California.

IT'S NOT OVER YET
There may still be hope for opponents of marriage equality, however. The U.S. Department of Justice, the ACLU, and GLAD have filed petitions asking the Supreme Court to review the constitutionality of DOMA in several pending lawsuits, and the court may decide on October 1 to hear the Prop 8 appeal at the same time as the other marriage cases.

Adam Umhoefer, executive director of AFER (American Foundation for Equal Rights), the organization that brought the suit challenging Prop 8, cautioned supporters that the Supreme Court might not have rejected the case.

'Some have speculated that the Supreme Court may wait to consider our case until later this fall when the Justices will decide whether to grant review in several cases challenging the so-called Defense of Marriage Act,' Umhoefer said in a statement to AFER supporters.

If the court does combine Prop 8 with the DOMA cases, oral arguments would probably be scheduled for early 2013, and a final decision might be issued by June 2013.

AFER attorneys Ted Olson and David Boies, who successfully argued before the Ninth Circuit that Prop 8 was unconstitutional, had asked the Supreme Court not to hear the appeal.

Even if the Supreme Court ultimately decides to hear Perry along with the pending DOMA cases, AFER promised its legal team would continue to argue that Prop 8 is unconstitutional.

'Should the Court decide to hear the case,' the group said in a statement, 'AFER's legal team, led by distinguished co-counsel Theodore B. Olson and David Boies, will make the case for the fundamental right to marry.'

NOM STILL 'CONFIDENT'
One person likely to be disappointed if the Supreme Court declines to hear Perry is NOM executive director Brian Brown. In an interview with Gay radio host Michelangelo Signorile at this year's Republican National Convention, Brown said he expected the court to take the Prop 8 case and ultimately rule against marriage equality.

'I'm confident - I'm very confident - that they will take the [Prop 8] case,' Brown told Signorile. 'I don't think the court is going to find some hidden right to same-sex marriage deeply embedded in our Constitution. So, I think we're going to win.'

California Gov. Jerry Brown and state Attorney General Kamala Harris both oppose Prop 8 and declined to defend it in court. Consequently the appeal is being argued by attorneys for Republican state legislator Dennis Hollingsworth, one of the leaders of the Prop 8 campaign.

The history of the Prop 8 case goes back to a 2008 decision by the California Supreme Court that same-sex couples have a constitutional right to marry. According to the Los Angeles Times, an estimated 11,000 same-sex couples married between June 17 and September 17, 2008.

However, California voters passed Proposition 8 in November 2008, overturning the state court decision and banning same-sex marriages. In May 2009, the California Supreme Court upheld Proposition 8 and ordered a halt to future same-sex marriages in the state.

AFER then brought suit in federal courts, arguing that Prop 8 violated the equal protection and due process clauses of the U.S. Constitution. Federal District Judge Vaughn Walker agreed, striking down Prop 8 on August 4, 2010.

UNEQUAL TREATMENT
In February 2012, the U.S. Ninth Circuit Court of Appeals upheld Walker's ruling. Writing for the majority, Judge Stephen Reinhardt attempted to find 'the narrowest ground' for deciding the case, and one that was grounded in the particulars of the situation in California.

Because same-sex couples in California had been legally allowed to marry at one time, and Prop 8 removed that right only from same-sex couples and not from opposite-sex couples as well, Reinhardt said, it violates the equal protection clause of the U.S. Constitution.

'Proposition 8 singles out same-sex couples for unequal treatment by taking away from them alone the right to marry' and therefore subjects a minority group to 'the deprivation of an existing right without a legitimate reason,' Reinhardt wrote in his opinion.

Some observers believe that because the Ninth Circuit ruling is so narrowly argued and applies only to the specific situation in California, the U.S. Supreme Court will be less inclined to review the decision.



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