I really enjoy the moments right before a landmark ruling is handed down. Yes, the California Prop 8 ruling today is merely a ruling by a 3 judge panel of the 9th Circuit Court of Appeals but it doesn’t change the excitement level amongst those of us that follow constitutional issues closely.
California’s Proposition 8 was the 2008 ballot initiative that outlawed gay marriage in California. What followed was a series of lawsuits. Prop 8 opponents lost in state court (Sort of. The gay couples who were married when gay marriage was legal in California prior to Prop 8 were legally still married according to the court. The court ruled that the state cannot perform any more gay marriages, thus creating a super elite group of gay couples who were married.). Later, in federal court, Judge Vaughn Walker overturned Prop 8 and wrote a really really well written opinion that will probably hold up even in the ultra-conservative Roberts court when (not if) it reaches the Supreme Court.
Today, we get to see how the 3 judge appeals panel rules on Judge Walker’s decision and if they remove the stay that was imposed on performing gay marriages in California. It’s not far fetched to guess that Walker’s decision in Perry v. Schwarzenegger will be upheld and that the stay will be lifted. Still, it is great fun to see if the ruling will be unanimous. Will the appeals court gut some of Walker’s opinion in the course of upholding his ruling? What will the dissenting opinion look like, if any? Will the losing side appeal to the 9th Circuit en banc (this means to go before the full 9th Circuit Court of Appeals to appeal the ruling of the 3 judge panel that rules on the case) or will the losing side go straight to the US Supreme Court. If the panel lifts the stay, will the stay go back in effect if the case is heard en banc or by the Supremes?
These are the exciting questions that will be answered this morning. I can’t wait!