9th Circuit, Anthony Kennedy, California, David Boies, Gay, Gay Marriage, Stephen Reinhardt, Ted Olson

Breaking: Ninth Circuit Issues Landmark Ruling on Gay Marriage

Or, if you prefer, a ruling on marriage equality. We knew this ruling was coming because the Ninth Circuit kindly informed us in advance that its opinion would be issued today: “The Court anticipates filing an opinion tomorrow (Tuesday, February 7) by 10:00 a.m. in Perry v. Brown, case numbers 10-16696 and 11-16577, regarding the constitutionality of Proposition 8 and the denial of a motion to vacate the lower court judgement in the case.”

The Ninth Circuit’s practice of providing advance notice of certain opinion filings is very helpful to those who cover the court. It would be nice if other circuit courts followed the Ninth Circuit’s lead. (Yes, I just typed that sentence.)

Now, let’s find out how the three-judge panel ruled in Perry v. Brown (formerly known as Perry v. Schwarzenegger)….

This just in, from Dan Levine of Reuters, via Twitter (12:58 PM): CALIFORNIA GAY MARRIAGE BAN IS UNCONSTITUTIONAL- 9TH CIRCUIT RULING #prop8

UPDATE (1:03 PM): The Ninth Circuit’s special Perry website appears to be down.

UPDATE (1:05 PM): Here’s a copy of the opinion, via Mike Sacks on Twitter. We are reviewing it now.

UPDATE (1:10 PM): The opinions total 133 128 pages. Judge Reinhardt’s opinion affirms the district court. Judge Smith concurs in part and dissents in part.

UPDATE (1:12 PM): Chris Geidner, who has been following this litigation very closely, has this analysis.

UPDATE (1:16 PM): You can check the ATL Twitter feed for updates. We are retweeting analysis from all over the web. (Dahlia Lithwick, who has gotten very good at speed-reading opinions from covering the Supreme Court, is tweeting prolifically.)

UPDATE (1:25 PM): Here is the final paragraph of Judge Reinhardt’s opinion:

UPDATE (1:30 PM): Footnote 27, at the end of the final paragraph of the opinion, states that “[t]he stay pending appeal issued by this court on August 16, 2010 remains in effect pending issuance of the mandate.” Assuming this case is the subject of en banc activity or a certiorari petition to the U.S. Supreme Court, the mandate won’t be issuing any time soon. The mandate issues only after en banc activity is done and there’s no certiorari petition filed with SCOTUS.

CORRECTION: As a commenter points out, a cert petition doesn’t automatically stay the issuance of the mandate:

A party must move for a stay of the mandate pending a cert petition, demonstrating that the cert petition “would present a substantial question and that there is good cause for a stay.” Regardless what happens with respect to an en banc petition, there will almost certainly be a cert petition here, and it will easily meet the “substantial question” threshold, so as a practical matter you are right — the status quo is likely to remain[] stayed until the Supreme Court is done with this case.

For more, see Fed. R. App. P. 41.

UPDATE (1:38 PM): Readers, we welcome your opinions and insights. What have you noticed in the opinion? Please share your views, in the comments.

Will Justice Kennedy bless this union?

UPDATE (1:50 PM): Okay. Here are some bottom-line observations about the 100+ pages of opinions (Judge Reinhardt’s opinion, and Judge Smith’s concurrence in part and dissent in part):

  • Judge Walker’s decision is AFFIRMED. Proposition 8, which “violates the Fourteenth Amendment to the United States Constitution,” is unconstitutional.
  • On the threshold question of standing, the Prop 8 proponents have standing to defend this law, based on the ruling of the California Supreme Court.
  • The basis for the Ninth Circuit’s ruling on the merits is narrower than the district court’s. The Ninth Circuit’s ruling applies to Prop 8 and California specifically, rests on equal protection grounds (not a due process / fundamental rights analysis), and relies heavily on the U.S. Supreme Court’s ruling in Romer v. Evans. (For additional discussion of the Romer reliance, see Chris Geidner.)
  • The Romer opinion was, of course, written by Justice Kennedy — a crucial swing vote if this case goes up to SCOTUS. As Professor Rick Hasen tweeted, “As I read #prop8 decision, my thought is this is written for Justice Kennedy first, public second.”
  • Judge Walker was not required to recuse himself from hearing the case. Motion to vacate the judgment denied.
  • Judge Smith concurred in part, agreeing with the majority on the standing issue and the recusal issue, and dissented in part, on the constitutional merits. From his opinion: “I am not convinced that Proposition 8 is not rationally related to a legitimate government interest. I must therefore respectfully dissent.”
  • No same-sex marriages will take place today or tomorrow or this week. Here is Judge Reinhardt’s final footnote: “The stay pending appeal issued by this court on August 16, 2010 remains in effect pending issuance of the mandate.” The mandate won’t issue until en banc proceedings are concluded — and, as a practical matter, until (probable) Supreme Court proceedings are concluded.

Those are the highlights. To read more, see… the internets, which have exploded with Prop 8 discussion and debate.

Want to catch up on the history of the Prop 8 litigation? Flip to the next page for a timeline of events….

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