Wondering what will happen with the Prop 8 appeal? Most people know that the Prop 8 trial decision, which ruled against the law banning gay marriage in California, has been appealed. But many aren’t sure what happens next. Here’s what you need to know:

Oral Arguments

On December 6, a week from today, the 9th Circuit Court of Appeals will hear oral arguments. This isn’t a trial–there’s no witnesses and no jury. Rather, a panel of three judges will decide two issues:

  1. Do the groups defending Proposition 8 gay marriage ban have standing, or the right, to appeal the original trial decision?
  2. Is Proposition 8 unconstitutional for violating the due process and equal protection clauses of the Constitution?

The oral arguments will be broadcasted live on CSPAN and will last two hours. In addition to the oral arguments, both sides are also submitting written arguments, or briefs, that the three judges will review.

The three judge panel will consist of Stephen Reinhardt, Michael Daly Hawkins, and N. Randy Smith. The first two were appointed by Democratic presidents, while the third is staunchly Mormon and appointed by President Bush in 2007. The decision will probably be 2-1 in favor of affirming Judge Walker’s decision.

En-banc Review

No matter what the three judge panel says, the case will probably then be subject to en-banc review by the entire 9th Circuit. This means that a random 11 judges of the 9th Circuit will review the 3 panel decision.

The decision of the en-banc panel is hard to predict, because we don’t know who the 11 judges will be.

Supreme Court

Finally, and again no matter the outcome of the en-banc review, the case will probably be appealed to the Supreme Court. You can find various predictions for a Supreme Court decision, and I won’t pretend to know what they’ll say. One thing for sure is that it’ll be at least a few years before this case makes its way through the entire process.

[Cross-posted at the Gay Law Report, where I discuss LGBT laws and related news.]

Gideon Alper

Gideon Alper

14 Comments

Leave a reply