The US Supreme Court this morning did not include the Prop 8 case in the list of cases it chose not to review.
The case, Americans for Equal Rights (AFER)'s challenge to Proposition 8, also known as the Perry V Brown case, holds tremendous interest in the LGBT community, for if the High Court does not hear it, same-sex marriages would once again begin.
The High Court’s first opportunity to deny review of the case came and went this morning.
The Proponents of Prop 8 then asked the US Supreme Court to hear the case.
The highest court in the land begins its term each year in the first Monday in October; in the week before, they begin reviewing the approximately 8,000 cases that get appealed and appear on the Court’s docket at the beginning of each term.
Their largest task is to whittle that number down by 99 percent; the Justices hear and decide only between 70 and 80 cases after a full briefing and oral argument.
Throughout the Term, the Justices meet almost every week in a private conference.
At each conference, they consider more than 130 requests to review judgments of state and federal courts.
When four Justices vote in favor of granting full review of a case, known as granting certiorari, the case is placed on the Court’s oral argument calendar and is decided after full briefing and argument.
Because of the high profile nature of the California same-sex marriage case, also known as the Prop 8 or the Perry case, court watchers had expected the case to appear in one the earlier conferences held.
Observers, however, feel that the California Prop 8 case majority opinion was written in a way designed to short-circuit the US Supreme Court’s acceptance of the case.
If the Court does not take the case, the appellate court’s decision stands – and same-sex couples may resume marrying immediately.
Another case of importance to the marriage equality movement is the Defense of Marriage Act (DOMA) case, determined in May by Boston’s First Court of Appeals to be unconstitutional in part.
The Justices may also consider several challenges to the so-called Defense of Marriage Act at the same time as the Prop 8 challenge.
Americans for Equal Rights (AFER), who brought the successful Prop 8 case, put forth the following set of possible scenarios.
Three scenarios exist:
Scenario 1: Supreme Court Hears the Prop. 8 Case
If the Court grants review, the announcement could come as early as September 25.*
Should the Court decide to hear the case, AFER’s legal team, led by distinguished co-counsel Theodore B. Olson and David Boies, will make the case for the fundamental right to marry.
Oral arguments would likely be scheduled for early 2013, and a final decision would likely be issued by June 2013.
Scenario 2: Supreme Court Does Not Hear the Prop. 8 Case
If the Court denies review, the Ninth Circuit Court of Appeals’ decision that ruled Prop. 8 unconstitutional would go into effect as soon as several days after the Supreme Court denies review.
As soon as it does, marriage equality would be restored in California and gay and lesbian couples could get married once again.
The Court may also hold the case for later consideration.
According to AFER, news outlets and legal scholars are speculating that the Supreme Court might hold off on an announcement until around Thanksgiving, when all the cases challenging the so-called Defense of Marriage Act (DOMA) will be eligible for consideration by the Justices.
If so, the High Court may deny review to the Prop 8 case because it is written so as not to create precedent for any other state and go ahead to hear the DOMA cases because of the clear impact of those on a wide swath of American states.
The California Supreme Court ruled on May 15, 2008 that same-sex couples had the right to wed.
Between June 17 and November 4, 2008, the City of West Hollywood issued more than 1,000 same-sex marriage licenses and performed more than 600 marriage ceremonies.
Voters passed Proposition 8 in November 2008, which overturned the California Supreme Court’s decision and banned same-sex marriages in California.
In May 2009, the California Supreme Court upheld Proposition 8 and reinstated the ban on same-sex marriage in California and halted all same-sex marriages in the state.
However, the Supreme Court ruled that the marriages granted during this time period, remain legally recognized.
In February 2012, the 9th Circuit Court of Appeals upheld Judge Walker's 2010 ruling that Proposition 8 is unconstitutional.
The City of West Hollywood was one of the first cities in the country to pass a resolution in support of marriage equality.
The City has been one of the most ardent and vocal advocates for the legal rights of same-sex couples and the right to marry, both in and outside its City boundaries.