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California Prop 8: Waiting on the Nine

By Robyn Hagan Cain on August 29, 2012 4:04 PM

Judge James Ware has officially closed Perry v. Brown, the California Prop 8 case, more than six months after the Ninth Circuit Court of Appeals ruled that the law is unconstitutional, Buzzfeed reports.

Same-sex couples, however, still cannot marry in the Golden State until the U.S. Supreme Court either issues a ruling in the matter, or rejects a petition to review the case.

Let’s go back and track Perry v. Brown through this never-ending mess of litigation.

  • 2008. In May, the California Supreme Court ruled that California's Proposition 22, which limited marriage to heterosexual couples, was unconstitutional. Voters responded in November by approving Prop 8, a state constitutional amendment to ban gay marriage in California. The day after the election, three groups petitioned the California Supreme Court to invalidate the amendment.
  • 2009. In May, the California Supreme Court upheld Prop 8. The court also ruled that the couples that married between the Prop 22 invalidation in May 2008 and Prop 8's passage in November 2008 were still legally married.
  • 2010. The federal Prop 8 challenge started in January and ended in August when District Judge Vaughn Walker decided that Proposition 8 was unconstitutional. Judges Stephen Reinhardt, Randy Smith, and Michael Hawkins, heard appeals in the case in December.
  • 2011. In January, the Ninth Circuit certified a question to the California Supreme Court regarding whether ProtectMarriage, an advocacy group that sponsored Prop 8, had standing to defend the law. In November, the California Supreme Court ruled that the Prop 8 sponsors could defend the measure in court. In December, the Ninth Circuit also heard arguments regarding whether Judge Walker's sexual orientation could be used to overturn his 2010 decision.
  • 2012. On February 7, the panel issued a 2-1 decision finding California Prop 8 unconstitutional. In June, the Ninth Circuit denied en banc rehearing in the case, paving the way for a Supreme Court appeal. In July, Prop 8 backers filed a petition of certiorari with the Supreme Court.

There are now seven petitions before the Supreme Court on the issue of marriage equality. It seems likely that the Court will at least review whether the federal government, under the Defense of Marriage Act, can deny federal benefits to legally-married same sex couples. (Six of the seven petitions for certiorari are challenging DOMA.) Do you think it will take up the Prop 8 challenge as well?

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