Prop 8 Trial Tracker

The Prop 8 trial: where things stand

November 23, 2011

This post will serve as a permanent post on Prop8TrialTracker.com that will be continuously updated so new and returning visitors can have an easy-to-understand, one-stop-shopping guide to where things stand with the trial.

If you see something that’s missing or should be updated, e-mail prop8trial at couragecampaign dot org.

UPDATED as of February 21, 2012

By Jacob Combs and Adam Bink

The 9th Circuit’s February ruling that Proposition 8 is unconstitutional was a major victory in the fight to strike down Prop 8, and has the possibility of being the final word on the subject or of being reconsidered by a larger en banc panel of the 9th Circuit or even the U.S. Supreme Court.  If you’ve been following the case but are a bit confused about all the different dates that have been thrown around, don’t worry — the case is complicated, and there are essentially four different tracks making their way through the courts simultaneously.  Here’s an overview of each of these related but unique aspects of the case, and when we can expect to see them back in court.

The case itself (regarding the constitutionality of Proposition 8 on the merits)

The skinny: In 2009, the American Foundation for Equal Rights (AFER) filed suit in the U.S. District Court for the Northern District of California on behalf of two couples, Kristin Perry and Sandra Steir, of Alameda County, and Paul Katami and Jeffery Zarrillo, of Los Angeles.  Both couples had been denied licenses by their respective county authorities on the basis of their sexual orientation, as Proposition 8, a constitutional amendment passed in 2008, had amended the California Constitution to recognize marriages only between a man and a woman.  Representing the plaintiffs were Ted Olson and David Boies, two well-known attorneys who had been on opposite sides of the landmark Bush v. Gore case that decided the 2000 presidential election.

The non-jury trial took place in January, and included an unprecedented courtroom look into the history of marriage in the United States, the discrimination LGBT people have faced throughout history, and the economics involved in prohibiting or allowing marriage equality in California.  On August 4, 2010, Judge Walker ruled in favor of the plaintiffs, striking down Prop 8 as unconstitutional under both the Due Process and Equal Protection clauses of the U.S. Constitution’s 14th amendment.  In his opinion, Judge Walker presented 80 findings of fact regarding same-sex marriage, which included discussions about the immutability of sexual orientation, the ability of same-sex couples to be good parents, and the inequality of providing LGBT couples with civil unions as opposed to full marriages.  These findings of fact are highly significant, because while appellate courts can overturn a lower court’s decision based on its findings of law, they usually defer to those courts’ findings of fact.

Almost immediately, the proponents of Prop 8 appealed Judge Walker’s decision to the 9th Circuit Court of Appeals.  The 9th Circuit stayed the lower court’s injunction against Prop 8 pending appeal, and a 3-judge panel heard oral arguments in the appeal in December of 2010, in which both sides argued their case on the merits.  One significant question that the panel asked regarded the standing, or authority, of the proponents of Prop 8 under federal law to appeal Judge Walker’s decision.  (For more on the standing issue, see below.)  Instead of issuing a ruling, in January the 9th Circuit panel referred (the official term is ‘certified‘) a question to the California Supreme Court as to the proponents’ standing under state law, and the appeal was placed on hold pending the state court’s answer. In March, the California Supreme Court agreed to hear the question sent over by the 9th Circuit, and a hearing date was eventually set for September 6. The plaintiffs requested a speedier timeline, but the California Supreme Court refused to expedite its proceedings on the issue of standing, and eventually the court made its decision, which it issued on November 17.

On February 7, the 9th Circuit released its opinion in Perry v. Brown that Proposition 8, the 2008 voter-enacted ban on marriage equality in California, is unconstitutional. In addition, the appeals panel ruled that the proponents of Prop 8 did have standing to pursue their appeal of Judge Walker’s decision striking down the marriage ban, and upheld District Court Judge Ware’s decision denying a stay to throw out Walker’s ruling because he is gay. The ruling on constitutionality was divided on an 2-1 vote, with Judges Stephen Reinhardt and Michael Hawkins voting to strike Prop 8 down, and Judge N. Randy Smith voting to uphold the ban.  In its ruling, the 9th Circuit avoided following Judge Walker’s broad recognition of a right to marriage equality under the U.S. Constitution, arguing instead that there was no need to even address whether the Constitution contained such an inherent right.  Instead, they focused on the specific situation in California, in which gays and lesbians had been given full marriage rights which were then taken away.  The appeals panel found that it was unconstitutional to take away rights from a group that have already been granted, when the reason for removing such rights is moral animus.  Furthermore, the 9th Circuit panel’s decision stressed how important the word and designation of “marriage” is, and maintained that civil unions and domestic partnerships which grant such rights but withhold that designation are not equal to full marriage rights.

Where things are at today: The 9th Circuit ruled on February 7 that Judge Walker was correct in striking down Prop 8 as unconstitutional.  On February 21, Prop 8′s proponents filed a petition for further appellate review by an 11-judge en banc panel of the 9th Circuit.  Their request will be sent to all the active judges on the appeals court, who will then take a vote on whether to grant the rehearing.  There is no set timeline for this process.

Upcoming court date: None at this time

Standing (whether or not the supporters of Proposition 8 have the legal standing to appeal)

The skinny: The issue of standing in Perry is hands-down the most legally convoluted aspect of the case.  The original lawsuit filed by AFER on behalf of the two couples named as its defendants then-California Governor Arnold Schwarzenegger and Attorney General Jerry Brown, along with several other state officials.  (The case is now called Perry v. Brown because Gov. Brown succeeded Gov. Schwarzenegger.)  Schwarzenegger and Brown declined to defend the lawsuit in court, so the proponents of Proposition 8 (ProtectMarriage.com) filed successfully to join the suit as what are called intervenors — people who are not official parties to the case but feel the outcome of the case would affect them.

During the course of the trial, Judge Vaughn Walker cast doubt on whether the proponents of Prop 8 had what is called ‘standing’ to appeal any decision he made in court.  In federal courts, standing is determined according to the prescription laid out in Article III of the U.S. Constitution, and parties must be able to satisfy three requirements by showing 1) they will suffer particularized injury if the decision is not overturned, 2) there is a causal connection between this injury and the actions of the other side and 3) a court decision in their favor could redress the injury.  The 3-judge panel of the 9th Circuit assigned to the Perry case also questioned the proponents’ standing, asking whether they could demonstrate how the striking down of Proposition 8 causes them immediate harm.  (Essentially, it’s not enough to say striking down Prop 8 would harm marriages in general, because that doesn’t show particularized injury.) The panel decided in December 2010 to certify the question to the California Supreme Court, essentially asking them for an advisory opinion regarding the proponents’ standing under state law.

The CA Supreme Court accepted the 9th Circuit’s question in March 2011 and set a court date for six months later, refusing to expedite the proceedings at the request of the plaintiffs.  On September 6, the case was argued before the California Supreme Court. On November 17, the court ruled that the proponents do have standing to appeal the decision under state law.  The distinction between state and federal law is significant here.  The California Supreme Court’s decision was in no way binding on the 9th Circuit, which still had to decide independently if the proponents have standing under federal law. Nonetheless, the state court decision is one the appellate panel could point to if it decided to grant standing to the proponents, and many observers believe the panel has indicated that it would essentially mirror the standing decision made by the CA Supreme Court.

In the 9th Circuit’s February opinion in Perry v. Brown, the panel ruled that the proponents of Prop 8 did have standing under Article III to pursue appeal.  They cited the California Supreme Court’s decision that the proponents had standing under state law to represent the interests of the state of California, and issued a brief ruling on a unanimous 3-0 vote that the state court decision satisfied their concerns about standing.

Where things are at today: The 9th Circuit has ruled that the proponents of Prop 8 have Article III standing to appeal Judge Walker’s decision.  If there is any further appellate review at the 9th Circuit or the Supreme Court, the standing issue could be addressed again.

Upcoming court date: None at this time

The tapes (whether or not the video recordings of the Proposition 8 trial should be released)

The skinny: You may remember that almost two years ago (wow!), Judge Vaughn Walker, presiding over what was then called Perry v. Schwarzenegger in a district court, petitioned the 9th Circuit to include the Prop 8 trial in a pilot program the circuit was trying out in which cameras were allowed into the courtroom.  The 9th Circuit said yes, but the proponents of Prop 8 went to the U.S. Supreme Court (a notoriously camera-phobic body). Over 140,000 people signed a Courage Campaign petition to the U.S. Supreme Court asking that the proceedings be televised. The U.S. Supreme Court ultimately stayed the broadcast of the proceedings in a 5-4 decision.  Judge Walker withdrew Perry from the pilot program, and while the case was still filmed, the tapes (actually, digital recordings) were given to the litigants and placed into the court record under a seal.

After they appealed Judge Walker’s August 2010 decision to the 9th Circuit, Prop 8′s proponents filed a motion in district court to prevent Judge Walker from showing portions of the recordings, which he had done at a few speaking engagements.  The plaintiffs, along with a coalition of media companies, filed their own motion to have the court unseal the recordings and make them public.  At this point, Judge Walker had retired, and Judge James Ware, who replaced him, heard both sides’ arguments in district court.

In September 2011, Judge Ware ordered the tapes to be unsealed.  Prop 8′s proponents filed an emergency request with the 9th Circuit to stay the order, which was granted, and appealed the decision.  The 9th Circuit heard arguments regarding the appeal of Judge Ware’s decision on December 8, 2011.  On February 2, the appeal panel issued its decision regarding the recordings, overturning Judge Ware’s ruling and ordering that the tapes remain under seal.

Where things are at today: The opponents of Prop 8 and the media coalition could appeal the ruling to the Supreme Court, but have shown no intent of doing so at this time.

Upcoming court date: None at this time

Vacating Judge Walker’s decision (whether or not Judge Walker’s decision should be vacated on account of his sexual orientation)

The skinny: After Judge Walker’s decision, Prop 8′s proponents also filed a motion in district court (with Judge Ware again presiding) to vacate Judge Walker’s decision on the grounds that he failed to disclose that he himself was in a long-term relationship with a man (which he did announce publicly after the decision was released).  In June, Judge Ware denied the proponents’ motion. (If you haven’t read his ruling regarding the motion, it’s worth taking the time to do so.)

In the 9th Circuit’s February opinion in Perry v. Brown, the panel ruled on a unanimous 3-0 vote that Judge Ware had not abused his discretion in denying the motion to vacate Judge Walker’s decision.  Because of this, Judge Ware and Judge Walker’s decision will stand.

Where things are at today: Because this aspect of the case was consolidated into the main appeal of Judge Walker’s decision on constitutionality, proponents could ask for further appellate review on it if they appeal the 9th Circuit’s constitutional decision.

Upcoming court date: None at this time

The big question following the 9th Circuit’s opinion is: what comes next?  The 9th Circuit’s February 7 ruling maintained the previous stay placed on Judge Walker’s decision by the 9th Circuit in August 2010 until the appeals court’s mandate is final.  Because the proponents of Prop 8 have sought a full 9th Circuit rehearing, that stay is extended until the rehearing request is approved or denied.

The proponents of Prop 8 have asked for what is called an en banc hearing. In most appellate courts, this involves the decision by a panel of judges (in this case, the 3-judge panel reviewing the Perry v. Brown case) being reviewed by all the judges on the appeals court. In the 9th Circuit, however (by far the largest appellate court in the country), an en banc hearing involves 11 of the court’s judges. In order for this review to occur, a majority of all active judges in the 9th Circuit must vote to rehear it. Many legal observers believe it is unlikely the court would allow an en banc hearing. The losing party could then appeal the case to the U.S. Supreme Court. The Supreme Court has discretion over which cases it decides to hear, and hears arguments in only about 1% of all petitions filed for certiorari (judicial review) each term, so there is no guarantee it would take up an appeal of Perry. If four Supreme Court Justices agree to hear the case, the Supreme Court will review the case.

This post will be a permanent one that will be updated to reflect the most recent developments in the appeal.

Filed under: Community/Meta,Prop 8,Prop 8 trial

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