Prop 8 Supreme Court action possible soon

September 24, 2012

After a four year long court battle beginning with the California State Supreme Court’s decision stating that preventing same-sex couples marriage equality denied them their constitutional rights and the subsequent victory of Proposition 8 at the ballot box, the flood gates of same-sex marriage may re-open as soon as next week.

Or not.

Prop 8 has been ruled unconstitutional. Twice.

Actor George Takei, with his soon-to-be husband Brad Altman at his side, speaking in the moments before same-sex marriages were allowed to take place in early 2008. Surrounding Mr. Takei are West Hollywood City Council members Jeffrey Prang (l), John Heilman, John Duran and on the right, Abbe Land.

First by the US District Court in Northern California and then by the Ninth Circuit Court of Appeals.

The Proponents of Prop 8 then asked the US Supreme Court to hear the case.

The highest court in the land begins its term each year in the first Monday in October; in the week before, they begin reviewing the approximately 8,000 cases that get appealed and appear on the Court’s docket at the beginning of each term.

Their largest task is to whittle that number down by 99 percent; the Justices hear and decide only between 70 and 80 cases after a full briefing and oral argument.

Throughout the Term, the Justices meet almost every week in a private conference.

At each conference, they consider more than 130 requests to review judgments of state and federal courts.

When four Justices vote in favor of granting full review of a case, known as granting certiorari, the case is placed on the Court’s oral argument calendar and is decided after full briefing and argument.

That day the city processed and wed hundreds of same-sex couples in a history making event.

Because of the high profile nature of the California same-sex marriage case, also known as the Prop 8 or the Perry case, court watchers expect the case to appear in one of the earlier conferences held.

The first opportunity for the Perry case to be reviewed is September 24.

Observers, however, feel that the California Prop 8 case majority opinion was written in a way designed to short-circuit the US Supreme Court’s acceptance of the case.

If the Court does not take the case, the appellate court’s decision stands – and same-sex couples may resume marrying immediately.

Another case of importance to the marriage equality movement is the Defense of Marriage Act (DOMA) case, determined in May by Boston’s First Court of Appeals to be unconstitutional in part.

The Justices may also consider several challenges to the so-called Defense of Marriage Act at the same time as the Prop 8 challenge.

Americans for Equal Rights (AFER), who brought the successful Prop 8 case, put forth the following set of possible scenarios.

City staffer Lisa Belsanti and her spouse, Rebeccah Luckett, showing off their marriage license.

Scenario 1: Supreme Court Hears the Prop. 8 Case

If the Court grants review, the announcement could come as early as September 25.*

Should the Court decide to hear the case, 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.

Oral arguments would likely be scheduled for early 2013, and a final decision would likely be issued by June 2013.

Scenario 2: Supreme Court Does Not Hear the Prop. 8 Case

If the Court denies review, the announcement could be issued as early as October 1*.*

The Ninth Circuit Court of Appeals’ decision that ruled Prop. 8 unconstitutional would go into effect as soon as that Court issues its mandate, which would likely be several days after the Supreme Court denies review.

As soon as it does, marriage equality would be restored in California and gay and lesbian couples could get married once again.


*The Court may also hold the case for later consideration.

Tori and Kate Kuykendall, with their daughter, Zadia, exchanging vows in West Hollywood Park Tuesday, June 17.

Members of the West Hollywood City Council will hold a news conference to discuss the US Supreme Court’s decision on whether to grant a writ of certiorari to determine the constitutionality of California’s Proposition 8 when the time for such an event arrives.

According to a city press release, the news conference may be postponed until November if the US Supreme Court does not announce their decision on Monday, September 24, 2012 or Tuesday, September 25, 2012.

The California Supreme Court ruled on May 15, 2008 that same-sex couples had the right to wed.

Between June 17 and November 4, 2008, the City of West Hollywood issued more than 1,000 same-sex marriage licenses and performed more than 600 marriage ceremonies.

Voters passed Proposition 8 in November 2008, which overturned the California Supreme Court’s decision and banned same-sex marriages in California.

In May 2009, the California Supreme Court upheld Proposition 8 and reinstated the ban on same-sex marriage in California and halted all same-sex marriages in the state.

However, the Supreme Court ruled that the marriages granted during this time period, remain legally recognized.

In February 2012, the 9th Circuit Court of Appeals ruled Proposition 8 unconstitutional.

The City of West Hollywood was one of the first cities in the country to pass a resolution in support of marriage equality.

The City has been one of the most ardent and vocal advocates for the legal rights of same-sex couples and the right to marry, both in and outside its City boundaries.

AFER and the City of West Hollywood contributed to this report.