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    Posted August 4, 2010

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Prop 8 Declared Unconstitutional

On Wednesday, August 04, in the case of Perry v. Schwarzenegger, U.S. District Chief Judge Vaughn R. Walker said Proposition 8, passed by voters in November 2008, violated the federal constitutional rights of gays and lesbians to marry the partners of their choice. The next stop will undoubtedly be an appeal to the U.S. 9th Circuit Court of Appeals and then up to the U.S. Supreme Court.

"Plaintiffs challenge Proposition 8 under the Due Process and Equal Protection Clauses of the Fourteenth Amendment," the judge wrote. "Each challenge is independently meritorious, as Proposition 8 both unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation. Plaintiffs seek to have the state recognize their committed relationships, and plaintiffs' relationships are consistent with the core of the history, tradition and practice of marriage in the United States."

Ultimately, the judge concluded that Proposition 8 "fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples. Because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional."

What happens next?
Proponents of Prop 8 will put pressure on the judge to immediately issue a stay to stop the ruling from going into effect until appeals are filed. Supporters of the referendum are concerned that same-sex marriages could be performed before the judge rules on the stay request, which could take several weeks.

The next step will be for the losing side to file a "merits" appeal with the 9th Circuit U.S. Court of Appeals in San Francisco, asking it to decide whether the judge's ruling was proper. Lawyers will argue on the larger legal questions in front of the three judges on the court, and then a written ruling will be issued. The losing side at this stage can ask an "en banc" panel of 11 judges from the court to hear the case.

The appeals court has no deadline in which to decide the constitutional questions, so the waiting game could continue for many months.

After the 9th Circuit court rules, lawyers have the option of asking the Supreme Court to intervene. The nine justices on the Supreme Court, unlike lower courts, have the discretion to deny hearing the case. In fact, only about 1 percent of petitions for certiorari -- which this appeal is labeled -- are accepted by the court for argument.

If the case is accepted both sides will file a series of written briefs, oral arguments would be held, and then a written ruling is issued. The high court usually releases its rulings by June of the annual term that begins in October, within a few months at most of hearing a case.

Depending on how long it takes the appeals court to decide how quickly to hear the case and then to decide the constitutional questions, it could be a year or two before the case reaches the Supreme Court.

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