Minutes ago the full Ninth Circuit Court of Appeals released their decision (pdf) not to reconsider their three-judge panel's decision from early February that Proposition 8, a constitutional amendment barring same-sex marriage in California, is unconstitutional.
This is unadulterated good news.
It means that the
bigots supporters of Proposition 8 have three months to file a request to the US Supreme Court to consider the case. If SCOTUS accepts the request, the nine Supreme Court Justices will almost certainly hear the controversy sometime late this year or early next year and render a decision before the end of June, 2013.
If SCOTUS rejects the case (or Prop 8 proponents decide not to request consideration -- an almost inconceivable event) then the Ninth Circuit panel's earlier decision will stand, and marriage equality will immediately become (once again) the law of California.
Had the decision gone the other way -- had the Ninth Circuit decided to reconsider the decision en banc (using an eleven-panel set of judges), that would have potentially set back a final judgement by as much as a year.
A similar trajectory is being followed by another marriage equality case, this one from the First Circuit Court of Appeals. Just a week ago a First Circuit panel ruled that Section III of the Defense of Marriage Act is unconstitutional. Because there are only six judges on the First Circuit and three of them produced a unanimous decision saying just that, any appeal for reconsideration to the full First Circuit is likely to be rejected quickly, sending the case to the Supreme Court as well.
A favorable decision at SCOTUS in the Proposition 8 case (Perry v Brown) would almost certainly NOT mean that same-sex marriage would be legalized throughout the country. That's because the Ninth Circuit panel's judgement found, essentially, that Proposition 8 was unconstitutional because it was targeted at a specific group (LGBs) and had taken away rights they had previously possessed (by virtue of an earlier California Supreme Court decision), not because there is a fundamental right to marry that applies to same-sex couples. If the Supreme Court rules against Proposition 8, most people now believe that is the logic they will affirm, not the more sweeping logic of the original decision by Judge Vaughn Walker, which found that Proposition 8 violated the 14th Amendments guarantees of equal protection.
Unlike the Proposition 8 case, a favorable DOMA ruling is very likely to have national implications. It would mean the Federal government would be required to recognize the marriages of same-sex couples for the purposes of Federal benefits, immigration and tax status. No longer would marriages performed in states that have instituted marriage equality be considered "second class." It would mean that not very long into the future, people will look back and wonder how it could possibly have been that the United States could have had a law so egregious as to not recognize some people's marriages. It will be, if it comes to pass, a very good day.
Courtroom by courtroom, state by state and poll by poll, we continue to watch as it comes tumbling down. It's a big steaming pile of turd droppings. It takes time to tumble.
Judge O’Scannlain has filed a dissent from the denial of en banc rehearing joined by Judges Bybee and Bea, and in it he discusses his belief that Judge Smith’s dissent was correct. He says that “we have now declared that animus must have been the only conceivable motivation for a sovereign State to have remained committed to a definition of marriage that has existed for millennia.”
10:18 AM PT: Unsurprisingly, it appears that the stay is still in place, pending appeal to the Supreme Court. It would have been shocking otherwise, in fact.
Pam Spaulding @pamspaulding
RT @katekendell: BREAKING #PROP8: En banc denied. Marriages still on hold. 90 days for appeal to SCOTUS
"A majority of the panel has voted to deny the petition for rehearing en banc," the court wrote...
The court did not give a reason for its decision. Under the court's rules, a majority of the 26 active judges on the court would have needed to agree to grant the rehearing.
11:07 AM PT: This is not really a surprise...
Scott Wooledge @Clarknt67
Attorney Ted Olsen on press call says @AFER will oppose motion to appeal Ninth #Prop8 decision to the Supreme Court. #LGBT
UPDATE: A lawyer for the Alliance Defense Fund, the group defending Proposition 8 in court, told the Associated Press that they will be petitioning the Supreme Court for a grant of certiorari to review the case. ADF attorney Brian Raum expects a decision in fall 2013 in the case.Although I don't get the bit about 'fall 2013.'