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TUESDAY: Ninth Circuit plans filing in Prop 8 case

SAN FRANCISCO -- Tomorrow morning on primary election day in California, the Ninth Circuit Court of Appeals plans a major filing in the Perry v. Brown Proposition 8 case.

As if the LGBT community needed any more drama on Tuesday, what with the California primary being held and with enormous attention being focused on the San Diego mayoral race in which two of the four candidates are gay or lesbian, but now the Ninth Circuit is going to be making another major decision in the Prop 8 case.

The appeals court will decide whether to rehear the Prop 8 case "en blanc," or a panel of 11 judges chosen by random by the court. Anti-marriage attorneys filed for an en blanc hearing earlier this year after a three-judge Ninth Circuit panel on Feb. 7, 2012, voted 2-1 to uphold a lower court ruling by Judge Vaughn Walker that California's Prop 8 was unconstitutional.

Many legal experts have accused the anti-marriage side of further delaying the inevitable: the resumption of marriages by gay and lesbian couples in California.

The three-judge panel wrote that Prop 8 indeed violates the Equal Protection Clause in the 14th Amendment of the U.S. Constitution:

“Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples. The Constitution simply does not allow for laws of this sort.”

The American Foundation for Equal Rights (AFER), which successfully argued in court that Prop 8 is illegal, said today that a majority of the Ninth Circuit's 25 judges will have to approve the en blanc hearing.

AFER said:

The Ninth Circuit may also address Proponents’ renewed attempt to impugn the reputation of the United States District Chief Judge who struck down Proposition 8. Unable to defend Proposition 8 on its merits, Proponents claim that the now-retired Chief Judge Vaughn R. Walker was disqualified from ruling on Proposition 8 and that his historic decision should be vacated because he is gay and in a committed relationship. The Ninth Circuit unanimously rejected Proponents’ offensive argument, stating: “To do otherwise would demonstrate a lack of respect for the integrity of our federal courts.”

Because of the legal wrangling, the court has continued a stay that prevents gay and lesbian couples from marrying in California. No matter what happens Tuesday, the case is still likely to wind up in the U.S. Supreme Court, where Justice Anthony Kennedy appears to be the "swing vote."

Ken Williams is Editor in Chief of SDGLN. He can be reached at ken@sdgln.com, @KenSanDiego on Twitter, or by calling toll-free to (877) 727-5446, ext. 713.