Ninth Circuit Consolidates Prop 8 Cases Seeking to Overturn Judge Vaughn Walker’s Ruling

The Ninth Circuit Court of Appeals, in hopes to expedite rulings on California's ban on same-sex marriage have consolidated two cases involving Proposition 8, Lyle Denniston at the SCOTUS blog reports:

WalkerIn a brief order, a three-judge panel consolidated cases that both carry the case title Perry, et al., v. Brown, et al. (Circuit dockets 10-16696 and 10-16577).   Both are challenges, but for different reasons, to a federal District Judge’s ruling in August 2010 nullifying the ballot measure adopted by the state’s voters in 2008.

Adds Denniston:

One of the appeals is a plea to overturn the Walker decision on the merits (docket 10-16696).  The other (docket 11-16577) is also an attempt to overturn Walker’s ruling, but with the argument that he should have disqualified himself from ruling on the case — and that, as a result, his ruling must be vacated — because he was not an impartial judge.   The second challenge is based on two facts and a theory.  The facts are that he is a gay person and that he has been in a long-term relationship with a partner of the same sex.  The theory is that he would likely be interested in marrying his partner, and thus would benefit from his own ruling against the marriage ban.

The judge who succeeded Walker on the case, Chief Judge James Ware of San Francisco, has rejected the claim of partiality.

Both cases involve appeals by the sponsors and promoters of Proposition 8.   Those backers, as well as the same-sex couples who had challenged the ban, had told the Circuit Court that they were in favor of consolidating the two cases, so long as it did not result in a delay in the Circuit Court’s review.   By agreeing to consolidate the two proceedings, the Circuit Court at least implied that there would be no delay by going forward with them together.

It's expected the court will move quickly on a ruling.


  1. MT says

    Sure it will end. But first there will be a decision by the three-judge panel. Then, possibly, the Ninth Circuit will sit en banc, with all the active and eligible judges deciding whether all or some aspect of the three-judge decision is correct. And, probably unavoidably, the U.S. Supreme Court, in its singular discretion, will decide whether to grant certiorari — that is, will rule on whether the case goes beyond the Ninth Circuit or ends there.

    The Supreme Court may well take a pass because a key question for certiorari is whether a “circuit split” exists — that is, contrary decisions from two or more of the federal circuit courts, which are the highest federal appellate courts and decide the vast majority of constitutional questions, with no further review by the Supreme Court.

    If the Ninth Circuit decision is the last word (whether by the three-judge or en banc panel), constitutionally protected (or forbidden) marriage may be the rule of law in the 11 states and territories of the Ninth Circuit (which accounts for nearly 20% of the U.S. population). A Ninth Circuit decision is not binding on New York state or any other jurisdiction outside the circuit. A federal appeals court in another region may decide the opposite of what the Ninth Circuit holds. And then there would be a more prudential circumstance for the Supreme Court’s review, which it must again be emphasized is a court of limited review.

    So this case will take some time to play out and probably won’t be decided by the Ninth Circuit until as late as 2013. And the issue itself will, like civil rights for African Americans, evolve over years and decades.

  2. J Ascher says

    MT, The 9th Circuit still has to decide if the Prop8 proponents have standing in Federal Court to pursue an appeal. If they don’t (seems to be a very likely outcome), the case should end there and marriage equality returns to California.

  3. MT says

    [The 9th Circuit still has to decide if the Prop8 proponents have standing.”]

    No, that is incorrect. The California Supreme Court decided that question just the other day, and in the affirmative: Standing exists. It was reported on this website:

    Because that was a question of state, not federal law, it was sent to the California Supreme Court in the first place. The Ninth Circuit won’t revisit it. The case proceeds on the merits.

    It’s confusing and tortuous, but on it goes.

  4. says

    Thanks MT for legal info. One correction: in your last comment I tank you meant “torturous”, though one might want to file some tort cases on this.