January 5, 2011

Same-sex marriage case: Maybe the Supreme Court won’t answer the Ninth Circuit’s question or it will do so summarily

The Ninth Circuit yesterday asked the California Supreme Court to answer a state law question that the Ninth Circuit said is “critical” to its decision of the standing issue in Perry v. Schwarzenegger, the case concerning whether Prop. 8 — the anti-same-sex-marriage initiative — violates the United States Constitution.

Most media coverage and commentary of the Ninth Circuit’s referral order assume the Supreme Court will agree to answer the question and that there will then be a full round of briefing and an oral argument prior to the Supreme Court issuing its opinion. That’s a very plausible scenario, but there are other ways this could play out.

First of all, the Supreme Court could simply decline to answer the question. A question involving a high-profile issue doesn’t guarantee the Supreme Court will take the case. Just a few months ago, the court rejected without comment a Ninth Circuit request to opine on the validity under the California Constitution of a city’s no-rent leases of public property to the Boy Scouts, who prohibit atheists, agnostics, and gays from being members or volunteers and require members to affirm a belief in God. (See Barnes-Wallace v. City Of San Diego (9th Cir. 2010) 607 F.3d 1167.)

Another possibility is that the Supreme Court could deny the Ninth Circuit’s request but answer the question in its denial order. In 2007, the Ninth Circuit asked the Supreme Court, “Under the California Constitution’s liberty of speech clause, should we review the constitutionality of an ordinance that sets closing times for adult entertainment establishments under strict scrutiny, intermediate scrutiny, or some other standard?” (Fantasyland Video, Inc. v. County of San Diego (9th Cir. 2007) 496 F.3d 1040.) The Supreme Court declined to answer (at least, not in a full opinion after briefing and argument), but, in its order, the court cited three of its decisions and said, “California law is clear that content-neutral time, place, and manner regulations affecting protected speech are subject to an intermediate standard of scrutiny. Currently, California law does not suggest that restrictions upon the hours that adult businesses may operate require review under any test other than the intermediate scrutiny standard applicable to other content-neutral regulations.”

Finally, the Supreme Court could give a more oblique answer in a denial order. In 2008, the court denied a Ninth Circuit request to clarify California law about the timeliness of habeas corpus petitions, stating that “there is controlling precedent on the question of timeliness.” (See Chaffer v. Prosper (9th Cir. 2008) 542 F.3d 662.) The result in the Prop. 8 case could be similar because the Ninth Circuit in its order yesterday cited a California Court of Appeal opinion and dictum in a California Supreme Court opinion that might be seen as adequately answering the question posed by the Ninth Circuit. If the Supreme Court denies the Ninth Circuit’s request because “there is controlling precedent,” the Ninth Circuit should have its answer and know it can rely on the state decisions it cited.

The Supreme Court has already docketed the Ninth Circuit’s request. If you want to be among the first to learn of the Supreme Court’s order on the request, you can sign up for an email notification from the court.

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