July 31, 2012
Prop 8’s proponents file a petition for a writ of certiorari with the Supreme Court, asking the high court to overturn the lower courts’ rulings invalidating Prop 8. Because the Supreme Court is on its summer recess, the case is docketed but the Court’s decision on whether or not to take up the appeal cannot come until the fall.
When a party asks the Supreme Court to take up a lower court’s ruling, they must succinctly describe the constitutional issue in question. In their filing, the proponents present the following question to the high court: “Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman.” They argue that the case merits Supreme Court consideration for the following reasons: it presents an “exceptionally important” constitutional question, it conflicts with other Supreme Court precedent (notably Baker v. Nelson), it misapplies the Supreme Court’s precedent in Romer v. Evans and it conflicts with other lower court rulings on the constitutionality of laws limiting marriage to heterosexual couples.
The lawyers for the plaintiffs who are challenging Prop 8 announce that they will oppose the petition for a writ of certiorari, arguing that there is no need for the Supreme Court to consider the case: “Because two federal courts have already concluded that Proposition 8 is unconstitutional, gay and lesbian Californians should not have to wait any longer to marry the person they love. We therefore will oppose the petition for a writ of certiorari. However, we recognize that this case presents constitutional issues of national significance, and are ready to defend our victories before the Supreme Court.”
Unlike the lower district and circuit courts in the American judicial system, the Supreme Court has discretion over which cases it decides to hear, and hears arguments in only about 1% of all petitions filed for certiorari each term. Because of that, there is no guarantee that it will take up the Prop 8 case. Four Supreme Court Justices must vote to hear the case for it to be considered by the high court. Many legal observers consider it unlikely that the Supreme Court will take up the case since the Ninth Circuit specifically limited its effects to California only.