Prop 8 Legal Update: 9th Circuit Lays Out Plan to Rule on Prop 8


SCOTUSblog with an update:

The Ninth Circuit Court will move directly, without a further public hearing, to rule on two key questions involving the constitutionality of California’s “Proposition 8,” banning same-sex marriage in the state. The Court, in an announcement Wednesday, laid out plans for its Proposition 8 review from this point on. The plans do include two hearings, to be held on Dec. 8, but not on the constitutional questions the Circuit Court now has before it.

The three-judge panel held a hearing on Dec. 6, 2010, on two constitutional disputes surrounding the ballot measure approved by California voters three years ago. Those issues arise in the case of Perry v. Brown (Circuit docket 10-116696).

One is whether Proposition 8 must be struck down under the federal Constitution, and the other is whether the Circuit Court has jurisdiction to rule on that question since an issue has arisen on whether anyone has a legal right to be before the panel. Tomorrow, the panel is to receive new briefs — from each side simultaneously — that will bear on that second question (which, technically, involves the issue of “standing” to appeal under the Constitution’s Article III). The briefs are to discuss the impact of a ruling last month by the state Supreme Court in California bolstering the right — under state law — of the backers of Proposition 8 to go to court to defend their measure against constitutional attack.

Once those new briefs are in, the panel seemed to be indicating by its announcement Wednesday, it will then move on to decide the two constitutional questions. The announcement stressed that “there will be no further argument” in that proceeding. It also emphasized that, up to now, the three-judge panel has not made a final decision on either question.

Bruce Hausknecht of CitizenLink also explains what is happening.