Lambda Legal Recaps Prop 8

Lambda Legal president Jon Davidson has issued an explanation of what might happen when the Supreme Court decides whether or not to rule on Proposition 8.

The Perry case is set for consideration at the justices’ conference on September 24, and the Court could announce as early as September 25 whether it is hearing the case. However, it is possible that the Court may wait to decide whether or not to hear Perry until it decides whether or not to hear any of the challenges to Section 3 of DOMA. So, we may not hear about Perry until October 9. It could even be later than that, if the Supreme Court decides it wants more time to decide what to do. If the Court announces that it will not hear the Perry case, it will be very exciting news for same-sex couples in California!

But the timing for what happens next is a little bit complicated: The Ninth Circuit's merits opinion in Perry of February 7, 2012, stated that "the stay pending appeal issued by this Court on August 16, 2010, remains in effect pending issuance of the mandate." (A "mandate" is the appellate court's order sending the case back to the District Court.) The Ninth Circuit's June 5, 2012, order denying rehearing en banc then said, that "the mandate is stayed for ninety days pending the filing of a petition for certiorari with the Supreme Court. If such a petition is filed, the stay shall continue until final disposition by the Supreme Court." In other words, it is the mandate that is stayed until final disposition of the Supreme Court. Once the Supreme Court either denies certiorari (that is, declines to hear the case) or accepts the case and ultimately decides it, then the mandate can issue. It is once the mandate issues that the stay of the injunction is lifted.

Read Davidson's full analysis.