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. Until gay marriage is allowed nationwide, there's really not much point. If my partner and I can't file a joint tax return, it's still a "separate but not equal" thing.

    Posted by: Dave from Chicago | Aug 16, 2010 8:29:06 PM

  2. Good point about the election. This removes all controversy until after it. I think that was the main goal here. The stay prevents the image of gay marriages being held, as well as any testimony that will get press. It could very well happen that the case is dismissed in Dec, but that would only lead to more appeals. I could easily see the ninth doing everything to dismiss the case without issuing a ruling, but I doubt the SC will allow them, if for no other reason than they probably know the outcome of the final appeal already. If SCOTUS punts then B&O will take their show on the road to another circuit, say TX, and do the same thing there. They should be planning on doing that already. See? B&O are forcing this thru the court system. I doubt either is primarily concerned about CA, though you could get marriage through the side-door under this ruling if it stands without appeal. Particularly if DOMA is struck down.

    Posted by: anon | Aug 16, 2010 8:30:11 PM

  3. California might be represented by one Governor Meg Whitman and a very conservative attorney general when the substantive case - once all the procedural motions are exhausted - is actually argued before the appellate and supreme courts. I am sure Olson and Boies are aware that the state government is, at best, a temporary ally.

    Posted by: John | Aug 16, 2010 8:55:32 PM

  4. Televise the appeal!

    Posted by: BobN | Aug 16, 2010 9:01:13 PM

  5. @John -- Not if I can help it. I'm trying to drum up turnout among the less politically active of my friends. Whitman is horrible!

    Posted by: Mike B. | Aug 16, 2010 9:09:15 PM

  6. Since when is Dec. 6th considered "an expedited schedule." I know I'm new to following court cases, but four months? That's a long wait just to get things moving again. Don't get me wrong, I'm really glad it is getting appealed so that this can be applied regionally and hopefully even nationally, but man do these court cases take forever to get the ball rolling.

    Posted by: ravewulf | Aug 16, 2010 9:38:26 PM

  7. while i understand the desire to try to spin this latest setback as good news, it is not. i'm sure the couples who expected to marry on wednesday do not consider this process to be 'expedited'. this is another one-step-forward, three-steps-back for us.
    there is precedent both ways on the standing issue so making too much of that can bite us in the butt..and, of course, be followed by even more appeals on that issue alone. another trial in december means a decision on walker's ruling may not come until well into next year...with additional appeals to whatever that decision is followed by a long process to the supreme court where our odds are shaky at best and fraught with peril. in the meantime, tax-paying american citizens who happen to be gay are being denied equality.. but where's the anger ?? 30 years ago we would have taken to the streets. today, we shrug our shoulders and 'hope' that everything will end up in our favor. that's not, historically, how other groups have prevailed. if we aren't willing to visibly and vocally fight for our rights, we'll never get out of this endless cycle of being pushed back for some technical reason or another. we have to take a very public stand and let it be known that we will not be silent, we aren't just asking, we are DEMANDING equality. sadly, i'm not holding my breath for that to come from our increasingly complacent community.

    Posted by: el polacko | Aug 16, 2010 10:23:19 PM

  8. Can I have some of whatever everyone who thinks Roberts will vote with us is smoking? That must be some good stuff.

    Posted by: jersey | Aug 16, 2010 10:29:28 PM

  9. Momentum is on your side LGBT Americans! You will prevail at every level. I look forward to the day you can marry your soul mates.

    When the USA adopts same-sex marriage much of the world will follow. For some reason when you do the right thing, other nations want to as well. So lead already! :)

    Posted by: Tone | Aug 17, 2010 12:39:28 AM

  10. @Frank,

    Souter is GONE sweetie!

    Posted by: Paul in Honolulu | Aug 17, 2010 3:52:43 AM

  11. Justice and equality seem to be always so close yet so far. I hope my partner and I will be able to experience the equality of marriage before we die.

    Posted by: Robert | Aug 17, 2010 10:34:51 AM

  12. @Paul -- See my CORRECTION, sweetie!

    Posted by: Frank | Aug 17, 2010 2:07:49 PM

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