American Foundation for Equal Rights

Marriage News Blog

Prop. 8 Case: Everything You Need to Know About Supreme Court Timing

A decision could happen in a matter of days from the United States Supreme Court about whether it will take up AFER’s case challenging Prop. 8. Whatever the Court does, AFER is confident that marriage equality will soon be restored in California.

AFER is working with our attorneys and California State officials to get you the most up-to-date information about what could happen and when. Here’s a rundown.


Prop. 8 has been ruled unconstitutional.  Twice.  First by the U.S. District Court and then by the Ninth Circuit Court of Appeals.  The Proponents of Prop. 8 have asked the U.S. Supreme Court to hear our case.

Every Term of the Supreme Court begins on the first Monday in October.  A Supreme Court Term usually runs until late June or early July.  Of the approximately 8,000 cases that appear on the Court’s docket each Term, the Justices hear and decide only between 70 and 80 cases after full briefing and oral argument.

Throughout the Term, the Justices meet almost every week in a private conference.  At each conference, they consider more than 130 requests to review judgments of state and federal courts.  When four Justices vote in favor of granting full review of a case, know as granting certiorari, the case is placed on the Court’s oral argument calendar and is decided after full briefing and argument.

The first opportunity for the Perry case to be reviewed is September 24.  During that conference, the Justices will consider the hundreds of requests for review that have been submitted during the Court’s summer recess.  The Justices may consider several challenges to the so-called Defense of Marriage Act at the same time as the Prop. 8 challenge.

Scenario 1: Supreme Court Hears the Prop. 8 Case

If the Court grants review, the announcement could come as early as September 25. *

Should the Court decide to hear our case, AFER’s legal team, led by distinguished co-counsel Theodore B. Olson and David Boies, will make the case for the fundamental right to marry.  Oral arguments would likely be scheduled for early 2013, and a final decision would likely be issued by June 2013.

Scenario 2: Supreme Court Does Not Hear the Prop. 8 Case

If the Court denies review, the announcement could be issued as early as October 1*.*

The Ninth Circuit Court of Appeals’ decision that ruled Prop. 8 unconstitutional would go into effect as soon as that Court issues its mandate, which would likely be several days after the Supreme Court denies review.  As soon as it does, marriage equality would be restored in California and gay and lesbian couples could get married once again.

* The Court may also hold the case for later consideration.