Yesterday, the Ninth Circuit court of appeals announced that since an appeal on Prop 8 is pending, they were putting a stay on Judge Walker’s ruling overturning Prop 8–the California ban on marriage for same-sex couples. They are set to begin hearing oral arguments the week of December 6.
In order to clear up some unanswered questions left dangling after the stay was announced, that news reports havent covered, I spoke with Ilona M. Turner, an out bi staff attorney at NCLR (National Center for Lesbian Rights), an organization that has been instrumental in fighting against Prop 8.
What do we know about the three judges from the Ninth Circuit court empaneled to hear the Prop 8 appeal? Are the they liberal, conservative or moderates? What kind of rulings have they made on LGBT rights issues in the past, if any?
We don’t know yet which three judges will be on the panel for the Ninth Circuit appeal in the Prop 8 case. It’s possible that it will be the three judges who heard an earlier appeal in the case – Judges Berzon, Fisher, and Wardlaw – but it also might be a different set of three judges. We won’t know for sure until the week of November 29, when the names of the panel judges will be announced.
So the judges who granted the stay wont necessarily judge the actual case?
That’s correct – the three judges who granted the stay most likely will not be the same panel of judges that hears the case in December. The panel of judges that decided the stay was the temporary “motions panel” that sits for a month at a time and only hears the motions that are brought to the Ninth Circuit that need an immediate response. There have been some past cases in which a motions panel keeps a case, but that does not usually happen.
Before the official appeal is heard, will there first be a hearing about whether the Prop 8 proponents have standing to bring an appeal?
The motions panel that issued the stay ordered the parties to address in their briefs both the question of standing and the question of whether Prop 8 is unconstitutional. So the argument scheduled for the week of December 6 could address both of those issues, and it’s unlikely that the question of standing will be separately decided anytime before that.
If they decide Prop 8 supporters dont have standing to bring an appeal, will they be able to appeal to the Supreme Court? Or does the case stop there?
If the Ninth Circuit decides that Prop 8 supporters don’t have standing to bring an appeal, the Prop 8 supporters could ask the Supreme Court to review that decision, and the Supreme Court would have the option either to hear the appeal or to let the Ninth Circuit’s decision stand.
If Judge walker’s decision stands without going to the Supreme Court, will this case apply to California only? What will the next steps be to get equal marriage rights for the whole country?
Judge Walker’s decision is just about California, but his language and logic could conceivably be applied to other discriminatory marriage laws across the country. If this case gets to the Supreme Court, and if they decide to reach the question of whether Prop 8 is constitutional, and if they ultimately decide that Judge Walker was right that Prop 8 is unconstitutional, they could issue that decision either in broad terms that apply to the whole country or in narrow terms that are limited to California.
Winning equal marriage rights for the whole country will require concerted efforts by all of us in our own states to repeal the discriminatory laws that exclude same-sex couples from marriage. To do that, we need to shift the tide of public opinion, which can only happen if we all do the crucial work of having open and honest conversations with our friends, neighbors, family members, and co-workers about the importance of marriage equality in our own lives.
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Bisexual and same-sex married: National bi activist Robyn Ochs-Part 1
Bisexual and same-sex married: National bi activist Robyn Ochs-Part 2