Federal Appeals Court Grants Stay of Prop 8 Decision

Same-sex marriages will not be happening in California this week. The Ninth Circuit Court of appeals has granted Prop 8 proponents a stay on Judge Walker's ruling while it is appealed. 

Olson_boies Appeal has been put on an expedited schedule and will be heard in San Francisco on December 6th.

Via Rex Wockner, Politico:

"Filed order (EDWARD LEAVY, MICHAEL DALY HAWKINS and SIDNEY R. THOMAS) Appellants' motion for a stay of the district court's order of August 4, 2010 pending appeal is GRANTED. The court sua sponte orders that this appeal be expedited pursuant to Federal Rule of Appellate Procedure 2. The provisions of Ninth Circuit Rule 31-2.2(a) (pertaining to grants of time extensions) shall not apply to this appeal. This appeal shall be calendared during the week of December 6, 2010, at The James R. Browning Courthouse in San Francisco, California.

The previously established briefing schedule is vacated. The opening brief is now due September 17, 2010. The answering brief is due October 18, 2010. The reply brief is due November 1, 2010. In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing. See Arizonans For Official English v. Arizona, 520 U.S. 43, 66 (1997). IT IS SO ORDERED. [7441574] (JS)"

Regarding the issue of standing, which the court has directed the appellants to address, Brian Devine at Prop 8 Trial Tracker notes:

"This is very good news for us. It shows that the Court has serious doubts about whether the Appellants have standing. Even better, the Court is expressing an opinion that its inclination is that the case should be dismissed. That being said, the panel that issued this Order (the motions panel) is not the same panel that will hear that case on the merits. The merits panel will be selected shortly before December 6th and we don’t know the three judges who will be on the merits panel. But this is a very good sign that the appeal could be dismissed on the ground of standing alone."

The plaintiffs have no plans to appeal the Ninth Circuit's ruling enforcing the stay.

Said attorney Ted Olson of the court's decision:

"We are very gratified that the Ninth Circuit has recognized the importance and pressing nature of this case and the need to resolve it as quickly as possible by issuing this extremely expedited briefing schedule. As Chief Judge Walker found, Proposition 8 harms gay and lesbian citizens each day it remains on the books. We look forward to moving to the next stage of this case."

Added Chad Griffin, Board President, American Foundation for Equal Rights:

"Today’s order from the Ninth Circuit for an expedited hearing schedule ensures that we will triumph over Prop. 8 as quickly as possible. This case is about fundamental constitutional rights and we at the American Foundation for Equal Rights, our Plaintiffs and our attorneys are ready to take this case all the way through the appeals court and to the United States Supreme Court."

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  1. that's disappointing.

    Posted by: jake | Aug 16, 2010 6:58:59 PM

  2. Suggestion for plaintiffs-appellees... don't forget the margins and the word count. Been there, done that, had to get the special permission to refile. Not fun!

    Posted by: Frank | Aug 16, 2010 7:00:30 PM

  3. This could be great news!! READY FOR THE SCOTUS!!! This could go nation-wide folks!!

    Posted by: Ben | Aug 16, 2010 7:02:07 PM

  4. Disgusting.

    "Never give in. Never give in. Never, never, never, never--in nothing, great or small, large or petty--never give in, except to convictions of honor and good sense. Never yield to force. Never yield to the apparently overwhelming might of the enemy."

    The enemies of equality, and those who hate rights based democracy (NOM and the rest) and human dignity must lose.

    Posted by: TANK | Aug 16, 2010 7:05:59 PM

  5. It seems to me that the stay is strictly a political issue at this time and are trying to keep this out of the Supreme Court. It's almost as if they are crossing their t's and dotting their i's to make sure nothing can be misconstrued. I'm not a laywer, but reading this bit: "In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing" reads to me as if the court seriously doubts they even have standing to appeal. Or maybe I'm just optimistic that the courts will do the right thing and move on with equality once and for all...

    Posted by: Bryan Del Rizzo | Aug 16, 2010 7:07:33 PM

  6. Disappointed but ambivalent. I would have loved to see City Hall ring with LGBT wedding bells. And I do have to wonder if the Ninth Circuit was affected by all the rightwingnut badmouthing of Judge Walker. Then again, the judicial activism canard on marriage equality just got taken off the table for the midterm elections.

    Posted by: Peter | Aug 16, 2010 7:08:57 PM

  7. Really, the 9th bought the ridiculous "we don't want to irreparably harm the gays by letting them marry and then subsequently undoing their marriages" argument? Really? I hope these assholes lose on standing.

    Posted by: Joey | Aug 16, 2010 7:11:03 PM

  8. I feel more and more like a minority every day. This process has shown how fragile our rights really are - and for that, at least, we can be thankful. Fight on and don't settle for second-class citizenry. These bigots are mean fuckers.

    Posted by: Tom | Aug 16, 2010 7:15:55 PM

  9. I think the most promising news out of this is that the appeals court will hear the case before the end of the year.

    Posted by: Brian in Texas | Aug 16, 2010 7:18:11 PM

  10. This is extremely curious to me; from all I have read it appeared that granting the stay was a reach. What the 9th Circuit has effectively done however was remove this from the forefront of conversation prior to the midterm election. The ruling won't come until after the election takes place. The only thing I can say for the NOM folks at this point is be careful what you wish for because if the 9th circuit rules in favor of marriage equality (which I think will be the case) then it will apply to the entire 9th district jurisdiction (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington). So, we lost the stay, but they've fast tracked the appeal. Disappointing for sure for those who wanted to marry; but gives us the possibility for a bigger win.

    Posted by: Mike | Aug 16, 2010 7:18:44 PM

  11. If you're serious about equality, do this ONE thing. DEMAND OBAMA COME OUT NOW IN SUPPORT OF MARRIAGE EQUALITY. if he doesn't, then there is absolutely NO reason to vote for any Democrat. Show some self respect, damn it. Stop voting for people who hate you "just a little less."

    Posted by: Barney Frank | Aug 16, 2010 7:19:05 PM

  12. Disappointing for sure, but better to do it right. It would also suck if there was a repeat of folks getting married only to exist in limbo in a year.

    Posted by: Clifw | Aug 16, 2010 7:22:23 PM

  13. >>This could be great news!! READY FOR THE SCOTUS!!! This could go nation-wide folks!!

    Ben, ready for SCOTUS????? SCOTUS could cast it's opposition to gay marriage in stone nationwide. And yet, I have a feeling that is exactly where the courts and the plaintiffs want it to go. I hope the parties know what they're doing.

    Posted by: DireFates | Aug 16, 2010 7:26:34 PM

  14. I'm sure Ari (whom I'm in love with) will have something to say, but I can only see how good this could be. Let's don't miss the forest (the very well-written and document findings of fact) for the trees (the stay).

    We NEED this case to go all the way to the Supreme Court. Then Judge Walker's findings will apply to the entire United States. If the 9th Circuit hadn't taken up the matter, then it would have stopped at California.

    I know that the SCOTUS sometimes does its own findings of fact and can create new conclusions of law that were never raised by previous courts, so it's a gamble. But, the bottom line is that, we need the SCOTUS to affirm Judge Walker in one or another.

    Plus, I can't wait to read Scalia's dissent. I'm sure it will be just as pedantic and whiny as the one he wrote in Romer v. Evans.

    Posted by: Frank | Aug 16, 2010 7:27:55 PM

  15. How good are our chances at the SCOTUS?

    Posted by: Mike | Aug 16, 2010 7:32:25 PM

  16. I find it hard to believe there weren't political considerations in ignoring all the factors required for a stay. Believe me, if a court ignores those, they can just as easily ignore the requirements for legal standing to appeal. And we had better hope they do. Much as ignoring both sets of requirements is legal bullshit, it would be best if this case reaches an actual appeal. Marriage Equality in California alone is simply Not Good Enough.

    Posted by: Zlick | Aug 16, 2010 7:37:59 PM

  17. Very dangerous to suggest boycotting Democratic candidates because Obama hasn't come out for gay marriage. You must realize how tenuous Democrats' control of the legislative branch will be this fall, and how much worse things would be if the wingnut right was in charge. Do all you can to keep our advocates in power and those who despise us out of office.

    Posted by: WJH | Aug 16, 2010 7:38:01 PM

  18. @Mike -- Lots of people have noted that Judge Walker wrote his brief for one person, and one person alone: Justice Kennedy.

    He's the swing vote with the current lineup. And he wrote the brilliant majority opinion in Romer v. Evans.

    For Prop 8:

    Against Prop 8:
    Kennedy (!)

    Posted by: Frank | Aug 16, 2010 7:41:02 PM

  19. I am, of course, completely supportive of gay marriage -- everywhere and now. But the Ninth Circuit's ruling today is not necessarily a bigoted or unreasonable one.

    If same sex marriage in California were permitted while the appeals are still pending, very difficult and unpleasant consequences would likely affect those individuals who married now, if the case is reversed on appeal.

    This is NOT like the situation under Prop 8, where couples who had married before the law passed are still married. If Judge Walker's decision is reversed, it would mean that Prop 8 was ALWAYS in effect from the date of passage. Therefore a gay couple "married" now would almost certainly have their marriage declared invalid from the start. Imagine the difficulties that ruling might create with property rights, children, wills, death benefits, insurance, etc. for gay couples who had "married" while the appeals are pending.

    Of course, many say "let us marry today and take those risks." I understand that position and would feel that way myself if I wanted to marry in California. But the role of the courts is manifold -- and they often act to protect the system against future possible confusion and chaos -- as well as to protect those who may not fully understand the possible repercussions of marrying under a law that may be declared invalid.

    Of course, all of these clouds are just another reason that prohibiting gay marriage is discriminatory and unfair. But remember that, despite what idiot Republicans say about "activist judges", the courts generally tend to be conservative (in a good way) and thoughtful about their decision-making process and that is part of their role in the system.

    Posted by: Buster | Aug 16, 2010 7:44:05 PM

  20. I want Ari to weigh on this now.

    Posted by: TANK | Aug 16, 2010 7:45:34 PM

  21. Oops! I wrote Souter above when I meant to write Breyer... And I want to hear from Ari too! I'm sure he's penning his thoughtful analysis even as we comment... ;-)

    Posted by: Frank | Aug 16, 2010 7:48:25 PM

  22. Thanks Frank for the analysis. I'm worried about Kennedy, as I've read that he is more predisposed to vote against us.

    Posted by: Mike | Aug 16, 2010 7:50:29 PM

  23. I bet Roberts surprises you.

    Posted by: Pete | Aug 16, 2010 8:01:23 PM

  24. @Pete - I was thinking the same thing. I think Roberts and even possibly Alito may surprise alot of people. Of course the senior justice (or chief if his is part of the majority) gets to choose who writes the decision. I certainly hope that honor goes to Justice Kennedy. His decisions in Romer and Lawrence were stellar; he deserves the opportunity to finally hit the ball out of the park.

    Posted by: Mike | Aug 16, 2010 8:09:54 PM

  25. I think people are wrong about how Roberts will rule on this case. I don't think it will be as close as some people think at SCOTUS. I think Kennedy AND Roberts will uphold Walker

    I think the more likely split will be 6-3 against Prop 8.

    Posted by: TampaZeke | Aug 16, 2010 8:26:29 PM

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