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Supporters of Proposition 8, the California initiative banning marriage equality, which was declared unconstitutional by the Ninth Circuit Court of Appeals yesterday, plan to take their fight directly to the Supreme Court, if their reaction to yesterday’s ruling is accurate.
In a statement by Andy Pugno, general counsel for ProtectMarriage.com, the official proponents of Prop 8 (and failed Republican state Assembly candidate), he says that the Ninth District will not have the last word on the initiative.
It’s no surprise that the 9th Circuit’s decision is completely out of step with every other federal appellate and Supreme Court decision in American history on the subject of marriage. Ever since the beginning of this case, we’ve known that the battle to preserve traditional marriage will ultimately be won or lost not here, but rather in the U.S. Supreme Court.
We will immediately appeal this misguided decision that disregards the will of more than 7 million Californians who voted to restore marriage as the unique union of only a man and woman. We are confident that the rights of California voters will finally win out.
Prop 8 supporters had two options: to call for an en banc ruling of an 11-judge panel of the Ninth Circuit, or to appeal directly to the Supreme Court. While there is no explicit statement here that ProtectMarriage.com will opt for the latter, it appears that, with the trashing of the Ninth Circuit and the vow that ultimately the Supreme Court will decide, that they will forego the en banc panel.
This accelerates the time frame for an ultimate ruling on the issue. If ProtectMarriage.com does appeal to the Supreme Court, they would likely get a hearing at the beginning of the next session. So we could expect a ruling sometime in 2013, and no later than June of that year. I suppose they could fast-track it and fit in a ruling this year, but I don’t think that is likely.
In the statement, Pugno took swipes at the “Hollywood elite” for sponsoring the lawsuit, as well as Judge Vaughn Walker for failing “to disclose his own long-term homosexual relationship while presiding over a case seeking the legalization of same-sex marriage.” The Ninth Circuit found no merit in that claim by the Prop 8 proponents.
“Our path to the U.S. Supreme Court is now very clear,” Pugno concludes. That’s where this lawsuit was always headed, anyway, so we might as well get on with it. Importantly, however, the ruling in the Ninth Circuit was so narrowly crafted that even a Supreme Court opinion will not settle the issue of marriage equality for the whole country. Concurrent lawsuits against the constitutionality of DOMA will probably go further to settle that question.
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If the 9th circuit is so narrowly written, what are the chances that the supremes won’t take cert, leaving it where it is. Alternatively, what’s the probability that supremes will take it on the express purpose of overturning 9th circuit.
Exactly. The judges framed the issues so that a straightforward application of Romer could win the day. Plus, the evidentiary record for the Prop 8 proponents is so bad, the conservative justices just might go by the axiom “bad facts make bad law”, deny cert, and wipe their brows in relief that the 9th circuit bent over backwards to limit the scope of the ruling to one state and save the million dollar issue to another day.
I try to look for the devious way out.
I sat in on a lot of the liveblogging of the original trail. It was hard for me to believe the proponents were so completely incompetent. I kept asking why (I’m impartial; other than equal rights for everyone, I have no personal dog in this fight), and the only answer I ever got from commenters who are personally involved is that proponents are such ideologues that they had no clue as to how they sounded to more neutral people. That explanation wasn’t very satisfying.
Bmaz thinks the supremes won’t grant cert. I’m still on the fence. There’s no real constitutional issue to be decided, unless the supremes want to make one. Which they can.
My take: Roberts, Scalia and Alito will for certain vote against cert. Thomas will vote for cert, as will Ginsberg. I think Kagin will vote against cert. The others are tossups.
Boxturtle (If I were on the court, I’d lean against Cert. But I could be convinced)
But it’s accurate, I think. Read the commentary from the red blogs during the trial, they were cheering their lawyers for tearing everyone new buttholes. When they lost the case, there was genuine confusion as to how that could have happened.
Boxturtle (They finally decided that Walker was biased because he was gay)
You convinced me for now.
But that doesn’t mean I won’t keep asking. I guess my brain is wired so differently from theirs, I cannot comprehend how they could think that.
Fer crying outloud, even the judge was snide once or twice (or more). Did proponents not even catch that?
For the good guys, there’s now nothing to be gained by the Supreme Court’s granting cert, as the case is confined to the unique facts (legalization followed by withdrawal). If four conservatives want to, they can grant cert, and then it will be up to Justice Kennedy. Reportedly, the Boies/Olson arguments and the opinion yesterday were tailored with Kennedy’s opinion in Roemer v. Colorado in mind.
Another Q: If supremes deny cert, how soon will we know that?
“If supremes deny cert, how soon will we know that?”
Assuming that the D-I’s are prompt with their appeal, before the election. My guess is they will announce in September.
Boxturtle (And it is a guess)
Thanks.
The active and committed opponents of marriage equality are petty and vindictive. So they come off sounding petty and vindictive.
I, for one, can’t wait for THIS court to take this up. Assuming they will. I< personally, think this should be a state's issue. But I have always been a fan of Jeffersons….Thomas and George.
You are quite the wordsmith!!!
“Esse quam videri.”
As to timing, I’m no expert, but if their application for the writ were filed today, it’s certainly possible that the Court could consider it as early as their Wednesday conference next week. There doesn’t seem to be any need to brief the issues, which are clearly laid out in the majority and dissenting opinions of the panel which ruled yesterday.
I’ll bet you “dimes to donuts” that the final tally is 5-4.
Of course, that’s really lame ‘cuz that’s like betting that a soccer gmae will end up 1-0.
Careful with that bet. Cert is a WAY different question than marriage equality. I’d bet on 7-2.
And if it is 5-4, it won’t be a 5-4 combination you’ve ever seen before.
Boxturtle (Disclaimer: Predicting the supremes is similar to nailing jello to a wall)
“See you in September”
*splorf*
Your taste in humor is revolting. Are you sure you’re not my long lost brother?
Boxturtle (You would need to be nearsighted, bald, and have terrible taste in clothing as well)
The Court doesn’t sit in September. They wrap up the term in late June or so and start the new one on the first Monday in October, meeting before then only in case of emergency.
I’m curious why people make the predictions they do about the vote on certiorari. Why would a justice who supports the decision of the panel vote to hear the appeal? And if one of the conservatives thought they will lose Kennedy, why would they support granting cert, and then creating a precedent binding all over the country, and not just in the states which comprise the Ninth Circuit?
Doubt it.
The recent brohaha with the Komen Ponzi Scheme & the PP kerfuffle really highlights how the rightwing propoganda wurlizter has done such an effective job with at least a certain swath of conservatives, who have been endlessly told that their specific, very narrowminded, petty, vindictive & bullying viewpoints represent the “vast majority” of ‘Murkins, and as such, somehow are also enshrined in the Constitution and constitute the “Rule of Law.” I’ve witnessed a number of different clips of El Lushbo bellowing this at them, and we all know about Fox.
With Prop H8, the same fact-free, but fanatical, viewpoints apply. These entitled, self-righteous, bigoted & mostly brainwashed citizens believe that their viewpoints are so self-evident & divinely “approved,” that “it shall be so.”
I truly think they are genuinely *confused* – initially – when they don’t get “their way.” Then the whining victimization immediately commences, and we hear the same groans: it’s teh horrid LIEbrul media who has “swayed” opinion & distorted “facts,” or in this instance, it’s the Satan-inspired GAY judge who didn’t follow the “rule of law,” blah blah blah.
I know I sound mean-spirited sometimes, but the fictionalized fairy tale land that at least some conservatives live in anymore is, uh, very worrisome. These people don’t “get it.” The end.
“Why would a justice who supports the decision of the panel vote to hear the appeal?”
To reinforce the decision nationwide.
“why would they support granting cert”
Because cert is a WAAAAAY different question than marriage equality. With the exception of Thomas, the justices tend to vote the law as they see it. Like I said above, I’d expect a 7-2 decision on cert. But I don’t know which way it will go. Depends on if the Supremes want to settle this fight or want to collect more opinions.
Boxturtle (The court doesn’t sit in Sept, but they frequently announce cases to be heard then)
Thanks for bringing up the Komen case in this regard. It certainly smacked, stank, chose your word, of having no command of the obvious. The puzzling factor is Ari Fleischer’s involvement. Seems (though I find him disgusting, oily, etc) that he hadn’t lost touch with reality last time he was more in the public eye.
Eeewwww. Jello. I had 3 boxes of jello that I bought for trying out more complicated recipes a couple of years ago, so long that I’ve forgotten what they were. I decided to use them up. I should have thrown them out instead. That stuff is disgusting.
Dan Savage summed it up nicely, last night:
It isn’t over until we say it’s over and it’s not over until we win.
I fully expect that when marriage equality comes before the United States Supreme Court… we could lose. Don’t get me wrong: I hope to God that we win; I hope that Anthony Kennedy sides with the court’s liberal minority and with himself. But remember: even if we lose the first marriage equality case that comes up before the Supreme Court, it isn’t over. Not over. Until. We win. Yes, we lost Bowers v. Hardwick in ’86; I’m old enough to remember where I was when that hugely bigoted decision came down and how depressing that loss was: I was at a Kentucky Shakespeare Festival rehearsal for Comedy of Errors in Louisville, Kentucky, with a bunch of theater people—gay and straight—and we were disfuckingtraught. But we didn’t give up. We didn’t give up after Bowers v. Hardwick the same way we didn’t give up after Prop 8. And ten years after Bowers v. Hardwick? We won Lawrence v. Texas: in 2003 the Supreme Court ruled that—whodathunkit!—gay people did have a right to privacy, just like straight people do, and the court struck down anti-gay and anti-straight sodomy laws in 13 states. And today, less than a decade after after Lawrence v. Texas, a state ban on consensual gay and/or straight sodomy is inconceivable—well, inconceivable to all except Rick Santorum. (Santorum would love his gay son, says Rick, but Santorum would also like to see his gay son arrested, prosecuted and imprisoned.)
So, yeah, we might lose the first time marriage equality comes up before the Supreme Court—just like we lost the first time sodomy came up before the Supreme Court. But we can’t let that loss, if we lose, fill us with despair. I’m confident we won’t let that loss fill us with despair because we never have allowed a loss to fill us with despair. We have always kept fighting.
Because it’s not over until we say it’s over and, goddammit, it’s not over until we win.
http://slog.thestranger.com/slog/archives/2012/02/07/its-not-over-until-we-say-its-over
Jello–I cannot see that word without thinking of the stuff they served in the college cafeteria. It was so solid you could stand a fork up in it. In the “you can’t make this stuff up” category, we took a square of it back to the dorm and threw it against the wall as hard as we could throw. On the third throw…..it broke in two. I.will.not.eat.it.
I think you underestimate how firmly entrenched the bigots are. It’s like arguing with a creationist or a geocentrist — they have no earthly idea how far out their ideas are.
And I think a denial of cert is entirely possible. Both known supporters and known foes of marriage equality on the court have very good reasons to not want to have to hear this case right now.
It’s true that you’ve now said twice that you expect the decision on cert to be 7-2.
Would you care to state which way?
All that it would “reinforce nationwide” is the peculiar situation in California, where an existing right to marry was overturned by a referendum. If there were five votes for a sweeping finding that the Equal Protection Cluase mandates recognition of same-sex marriage, then it would make sense for the liberal justices to vote for cert. But this Court would be extremely unlikely to make such a broad ruling, when the narrower one relied on by the panel yesterday is available.
Just to make it sporting, I’ll guess that they deny certiorari 6-3, with Scalia, Alito, and Thomas dissenting, but Roberts not wanting to force Kennedy’s hand on this particular case.
Unless SCOTUS finds that the 9th misread/misapplied Romer, I really don’t see a successful appeal for the Prop 8 supporters.
Ironically had the challenge to Prop 8 been brought by polygamists, they would have lost.
The 9th’s narrowly drawn conclusion, in harmony with Romer, that once the state recognizes a right (a “right” by its very definition and nature is inviolable and inalienable) it cannot later eliminate or repeal that right.
Without even reaching the question of whether same gender marriages can, might, could, should, might may or must be allowed, the 9th validated the long-standing principal that rights cannot be eliminated by popular vote or legislative fiat.
There is little there upon which to base a challenge. Not that SCOTUS is above making a completely politically/ideologically based decision, but I don’t think Prop 8 is the case with which to try it.
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