The U.S. Court of Appeals for the Ninth Circuit will issue its decision tomorrow in Perry v. Brown, the challenge to the constitutionality of Prop 8. Actually, it will be the decision of the panel of three judges (randomly) assigned to hear the case: Reinhardt, Hawkins and Smith. Reinhardt and Hawkins seem almost sure votes to declare Prop 8 unconstitutional, and I would be astonished if this panel does not reach that result.
The main questions going forward are – What will be the basis of the ruling? What comes next?
First, a few side issues: The judges also must rule on whether the proponents of Prop 8 have standing to defend it, given that state officials have declined to do so. With the California Supreme Court having declared its view that, under state law, the proponents should have standing, I think it's highly likely that the panel will also find standing. Another question consolidated as part of this appeal is whether trial judge Vaughn Walker should have recused himself, because he and his partner's legal status may have been affected by the outcome. Easy – the court will swat down that objection. Lastly, in an embarrassing snafu, the court clerk's office mistakenly issued an order that should have been held until tomorrow, in which the court denied the motion to intervene by a state court clerk's office.
So on to the important questions – What will the Court's reasoning be if it rules Prop 8 to be unconstitutional? There are lots of sub-issues here: Will the court rule on a Due Process/liberty ground, extending the principle that individuals have a fundamental right to marry? Alternatively or perhaps as an additional ground, will the court find the Equal Protection Clause to be decisive? If it does, will this become the first federal appellate court decision to rule that classifications based on sexual orientation should be subject to heightened scrutiny?* [Historical footnote after the jump] Will the court find that Prop 8 fails even a rational basis test? For a sense of how important the standard of review is, recall that the Justice Department letter stating that DoMA is unconstitutional is contingent on the applicability of heightened scrutiny; under a rational basis test, DoJ concedes that DoMA should be upheld.
From a strategist's point of view, even more important than the doctrinal basis for such a ruling is the question of whether the court will issue a narrow or sweeping ruling. In other words, it could adopt the arguments presented by the City and County of San Francisco, and find that Prop 8 is unconstitutional because of the particular sequence of events in California, ie that sexual orientation had been found to be a suspect classification under the state constitution before the vote. The great value of this narrow approach is that it would provide the perfect excuse for the U.S. Supreme Court to decline to review the decision.
Whatever the court rules, on whatever basis, what will happen next? The losing party has the choice to either seek review by the Ninth Circuit as a whole (called "en banc review") or to skip that stage and file a petition for certiorari to the Supreme Court. One advantage of going the en banc route is that as soon as en banc review is granted – and it is difficult to imagine that it would not be in this case – a decision by a three-judge panel is vacated. In other words, the decision issued tomorrow could be effectively erased fairly quickly. That is because the en banc court gets to write on a clean slate; it will be hearing the appeal de novo.
The opinion tomorrow will probably include a provision that stays its effect until appellate review is complete. So no wedding bells will be chiming, and the case is still far from over. But there will be a lot of noise in the streets. That is a safe prediction.
* Actually it has happened once before, 24 years ago. A three-judge panel of the Ninth Circuit (including Judge Reinhardt) ruled that sexual orientation was a suspect classification in Watkins v. United States Army, 847 F.2d 1329 (1988). However, that opinion was vacated when en banc review was granted in 1989, and thus the panel decision has no precedential value.