The U.S. Court of Appeals for the Ninth Circuit is expected to rule Tuesday on the constitutionality of Proposition 8, California’s same-sex marriage ban. Below is the official announcement from the court’s public information office. Chris Geidner at Metro Weekly reports:
The long anticipated ruling is expected to address three issues: (1) whether former U.S. District Court Judge Vaughn Walker should have recused himself from hearing the case because he is gay and had a long-time partner with whom he was not married; (2) whether the proponents of Proposition 8 have the right to appeal Walker’s decision striking down Proposition 8 as unconstitutional when none of the state defendants chose to do so; and (3) whether, if Walker did not need to recuse himself and the proponents do have the right to appeal, Walker was correct that Proposition 8 violates Californians’ due process and equal protection rights guaranteed in the U.S. Constitution.
It goes without saying that this will be an important decision. And, in all likelihood, the 9th Circuit will reach the merits of the case and uphold the decision not to have required Judge Walker to refuse himself. But the political implications for this will be huge, especially for the election year.
If opponents of Prop 8 loose, they will likely move for a hearing en banc, which will take them well into the election season and may likely result in a full opinion by the 9th Circuit just before the election in November, which would make the impending appeal to the Supreme Court a hot button political issue.
If proponents of Prop 8 loose, they will likely forego seeking an en banc review and go directly to the Supreme Court. The Court is still largely regarded as relatively conservative and they will want it heard sooner rather than later. Four of the justices are more than 70 years old, with two conservatives and two liberals (particularly Ginsburg) potentially retiring in the next four years. While the Supreme Court will likely hear the appeal from the 9th Circuit sooner than four years, nonetheless the appointment of Supreme Court justices will almost certainly be asked of the nominees as to how they will appoint Supreme Court nominees when it comes to gay marriage.
The Ninth Circuit will effectively release a decision which will propel gay marriage to the top-tiers issues of the president campaigns, particularly for right-winged groups.
The Ninth Circuit, in all probability, will affirm the striking down of Prop 8, and so brace yourselves for an onslaught of conservative backlash which will bleed into the presidential election.
I am braced, and I feel sure other LGBTs and allies are as well.