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Topics In the News
Ninth Circuit Consolidates Prop 8 Cases / Happy Thanksgiving from AFER
Posted by: Claude J. Summers on 11/22/11
Last updated on: 11/23/11
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Plaintiffs Sandy Stier and Kris Perry.

In a one-sentence order issued on November 21, 2011, the U.S. Court of Appeals for the Ninth Circuit announced that it has consolidated two cases related to Proposition 8. In addition, the American Foundation for Equal Rights has issued a video in which the plaintiffs in the Proposition 8 case wish Happy Thanksgiving to all supporters of marriage equality.

Of the cases consolidated by the Ninth Circuit, one is the appeal of Judge Vaughn Walker's August 4, 2010 decision declaring Proposition 8 unconstitutional, the other is an appeal of a decision denying the motion by the proponents of Proposition 8 to vacate Judge Walker's decision on the grounds that he is gay and has a partner.

Proposition 8 has been in the federal courts for a long time. The federal challenge to Proposition 8 was filed in May 2009; the trial of the case, then known as Perry v. Schwarzenegger and now as Perry v. Brown, began on January 11, 2010. Judge Walker issued his historic decision on August 4, 2010.

The Ninth Circuit stayed Judge Walker's decision on August 16, 2010. A three-judge panel held a hearing on the case on December 6, 2010.

On January 4, 2011, the panel referred a question of standing to the California Supreme Court, which did not issue a ruling until November 7, 2011, when it decided that the proponents of voter-enacted legislation should have the right to defend such legislation in cases where the state declines to do so.

Although the ruling by the California Supreme Court is not binding on the Ninth Circuit, it is expected that the panel will accept the state court's recommendation on the question of standing. The court has scheduled additional briefing on the question by December 2, 2011.

It is also expected that the Ninth Circuit panel will uphold the ruling by the District Court dismissing the motion to vacate Judge Walker's ruling on the grounds that he should have recused himself because he is gay and in a long-term relationship.

Once those issues are disposed of, the Ninth Circuit will have to decide the constitutionality of Proposition 8 on its merits.

It is hoped that by consolidating the two cases, the Ninth Circuit panel will issue a ruling soon. For a case that was supposed to be expedited, the challenge to Proposition 8 has taken a very long time to wind its way through the judicial system.

In addition to the consolidated case, there is an ancillary matter also to be decided by the Ninth Circuit panel: the question of whether the tapes of the trial conducted by Walker can be released to the media and public. The panel has scheduled oral arguments on that question for December 8, 2011.

And however the three-judge panel of the Ninth Circuit rules, there are sure to be further appeals.

In this video from the American Foundation for Equal Rights Prop 8 plaintiffs Kris Perry & Sandy Stier and Paul Katami & Jeff Zarrillo wish Happy Thanksgiving to all our families:

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