Today, a three-​​judge panel of the Ninth Cir­cuit Court of Appeals ruled in Perry v. Brown that California’s Propo­si­tion 8, deny­ing mar­i­tal rights to same-​​sex cou­ples, is unconstitutional.

The panel had three issues to decide:

  1. Whether the back­ers of Propo­si­tion 8 had stand­ing to appeal the Dis­trict Court rul­ing that struck down Propo­si­tion 8
  2. Whether (assum­ing they did have stand­ing) the bal­lot mea­sure was uncon­sti­tu­tional, and
  3. Whether Dis­trict Judge Vaughn R. Walker, who decided the lower court case, should have recused him­self due to being in a same-​​sex rela­tion­ship at the time, and which would inval­i­date his rul­ing altogether.

I just got the rul­ing, so I’m going to be read­ing through it before I com­ment more on the details.

From here, Propo­si­tion 8 pro­po­nents have the option of appeal­ing to the en banc Ninth Cir­cuit Court, or appeal­ing to the United States Supreme Court. The strat­egy here depends on the pro­po­nents’ expectations.

If they expect that the Supreme Court will hear the case, and rule in their favor, then they are bet­ter served by imme­di­ately appeal­ing to them, and get­ting that final deci­sion as soon as pos­si­ble. It is unlikely, though, that the Supreme Court will make time on this season’s cal­en­dar for the case. Much more likely is that it will be heard in next year’s sea­son, which begins as we approach the Pres­i­den­tial election.

If they expect the Supreme Court to not hear the case, and let the lower rul­ing stand, then they are bet­ter served by tak­ing a gam­ble with the en banc Court to get a rul­ing in their favor. It’s not unrea­son­able to do that any­way; the panel was made up of the most lib­eral mem­bers of the Ninth Cir­cuit Court, so they stand a good chance of a more con­ser­v­a­tive opin­ion from the en banc Court. At worst, it would allow them to max­i­mize the time with­out same-​​sex mar­riages in Cal­i­for­nia, as such mar­riages will almost cer­tainly be stayed until the Supreme Court does what­ever it is going to do.

I’m pretty sure the Supreme Court would ulti­mately agree to hear the case. The Court may choose to delay action (as it so often does), by remand­ing the case to the en banc Ninth Cir­cuit. But I can­not see how the Supreme Court can­not even­tu­ally act on this case.