We (Almost) Have Marriage Equality:
An Analysis of Judge Walker’s Prop 8 Stay Ruling



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BY ARI EZRA WALDMAN

Ari weighs in on the ruling handed down earlier today by Judge Walker.

Northern District of California Judge Vaughn Walker will enforce marriage equality in California…as of 5 pm Pacific on August 18, 2010.  But for now, same-sex marriages will remain on hold.

Walker But, wait a minute. If the proponents of Prop 8 lost so comprehensively on August 4, why continue the stay? In the words of Judge Walker himself, marriage equality won the day. So, why would a judge delay the enforcement of his own decision. It is really a matter of procedural fairness. Judge Walker recognizes that this is, to paraphrase Vice President Biden, a big [blank] deal and it is only fair in our system to give the parties that lost at trial the opportunity to file their papers with the court of appeals. It also is a sign of respect for the appellate court, which now has time to consider any motion for a stay that they might here in the near future. Plus, this kind of ruling is common, even in civil cases.  It may be frustrating, but Rome wasn't built in a day, and neither were civil rights.

Regardless of the one-week extra delay in same-sex marriages in California, this decision was another momentous step forward for marriage equality. And here are five reasons why.

1.  The stay was denied. 

When lawyers refer to a "stay", they mean a delay in enforcing something. Outside of one more week, which Judge Walker found necessary "to permit the court of appeals to consider the issue in an orderly manner," the stay was denied. Prop 8 proponents had the responsibility of showing that allowing same-sex marriages would do so much harm to them that to go forward with same-sex marriage would be devastating. It's a high hurdle to jump, and Prop 8 proponents barely got off the ground. They admitted that they could not identify any harm to them if marriages licenses were issued. In fact, they relied on apparent harm to same-sex couples, caused by any uncertainty around the availability of marriage rights between now and any appeal. I am heartened that they are thinking so altruistically about same-sex couples here. But, that's not a harm that Prop 8 proponents will feel. In fact, it's barely a harm to anyone at all.

To boil down Judge Walker's ruling, he said that he looked at the possible damage to Prop 8 proponents — all of which he found hypothetical or unsupported at trial — and at the possible damage to same-sex couples — their lack of access to a fundamental right — and found that the damage to same-sex couples was considerably more substantial.

2.  Prop 8 proponents may not "likely" succeed on appeal.

Prop 8 proponents had to show that their appeal had at least a "likelihood" of success. That's a fancy way of saying that the only way a stay can be granted is if your appeal has merit. First, Judge Walker's decision on August 4 so eviscerated every piece of the Prop 8 proponents' case that he could not see any likelihood of success.  

3.  Prop 8 proponents may not even be able to appeal.

Second, and more importantly, Judge Walker notes that Prop 8 proponents may not even have the right to appeal. Lawyers call it "standing", which is not a homage to an R.E.M. song, but rather a way to identify those parties who have been hurt by an adverse ruling at trial and, thus, can ask a court to fix it. As noted here earlier, Governor Schwarzenegger and Attorney General Brown filed papers asking Judge Walker to remove his temporary stay. They are California in this case, they are the ones that have to change their practices as a result of the ruling,  and they don't even want to wait to do so. They want to start issuing marriage licenses to same-sex couples.  Since it is the State of California and not a collection of anti-marriage equality advocates that issue marriage licenses, the only parties that may have the ability to ask the court of appeal to review Judge Walker's decision are those representing the State of California.

Think of it this way. Let's say the San Diego Padres win a game against the New York Mets due to a botched call by an umpire. The win propels the Padres into first place ahead of the San Francisco Giants.  Who can appeal the win to the commissioner's office? Only the Mets. The botched call directly harmed them. They were the injured party. The Giants may have also been affected, but the adverse call didn't happen to them. To put it another way, a man is married to a woman. The man has an affair. Only the embattled wife can sue for divorce. The man's mistress can't ask a court to divorce the couple.

This is important for obvious reasons. The governor's and attorney general's decision to ask Judge Walker to lift the stay pretty much means they agree with the decision and do not want to have any part of an appeal to the Ninth Circuit. The remaining defendants in the Prop 8 case — anti-marriage equality advocates — are the only ones left. They were given a chance at trial to identify what kind of harm they would face if Prop 8 were overturned, but they failed to show any evidence of real harm.  Without any harm, not only do they lose their case at trial, but also they may lack the right to appeal.

And, in 1997, the Supreme Court has indicated that they agree. It was a case that involved a vote on making English the official language in Arizona. The Supreme Court found that initiative proponents, like the anti-marriage equality advocates in this case, do not automatically have the right to appeal a court decision overturning that initiative.

So, will this case be appealed? Don't be so sure.

4. This is another well-reasoned and well-supported decision from Judge Walker.

Nevertheless, Prop 8 proponents will try to appeal. They will also try to get the Ninth Circuit to do what Judge Walker refused to do, i.e., grant the stay. But, just like I discussed after Judge Walker's ruling last week, his decision was so well-written that an appellate court would be hard-pressed to defy him. I see that again here. Prop 8 proponents' inability to provide any evidence that they would be harmed by marriage equality in California is all over this decision and it was the fatal flaw in their argument, both at trial and for a stay. There simply is not enough evidence of real or expected harm to justify a stay.

5. This was a reaffirmation of marriage equality.

Judge Walker said it best: "[T]he trial record left no doubt that Proposition 8 inflicts harm on plaintiffs and other gays and lesbians in California. Any stay would serve only to delay plaintiffs access to the remedy to which they have shown they are entitled." Amen.

What happens now? 

Prop 8 proponents have already stated on CNN, MSNBC and Fox News that they plan on asking the Ninth Circuit for a stay and, if necessary, the Supreme Court. But any appellate court will first have to address the threshold question of whether they have the right to ask a higher court for a stay. It is unclear whether they have standing to appeal, as discussed above. Given that, here is one possible scenario of how this will play out, step-by-step:

Motion to Ninth Circuit for stay. If denied, motion to the Supreme Court. If granted, filing papers for a substantive appeal of the decision itself. If the Ninth Circuit finds Prop 8 proponents have no right to appeal, they may appeal that ruling to the Supreme Court, or the case ends with Judge Walker's ruling in place permanently. This may take 1-2 years.

If the Ninth Circuit finds Prop 8 proponents do indeed have the right to appeal, a three-judge panel of the Ninth Circuit will hear that appeal. Either way, the case will probably be then heard by a larger panel — perhaps, 11 — of judges. Then, the case may go before the Supreme Court. This may take up to 3-5 years.

Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His area of expertise are criminal law, criminal procedure, LGBT law and law and economics.

Comments

  1. Steve says

    Succinct and logical – thank you for this.

    The most compelling item is that proponents of Prop 8 may not even be *allowed* to appeal because they haven’t demonstrated that they’ve been harmed. Yup.

  2. Glenn says

    Excellent analysis. The only quibble I have is that I would think the 9th Circuit can certainly, if it chooses, issue a stay pending its determination of the standing issue, i.e., I don’t believe it is true that “any appellate court will first have to address the threshold question of whether they have the right to ask a higher court for a stay.” A court always has jurisdiction to determine its own jurisdiction, and if it believes a stay is necessary for an orderly determination of that question, I see no reason why the court cannot do so.

  3. Ari says

    You’re right, Glenn. But the court will ultimately have to decide standing before addressing the merits. With regard to issuing a stay, you’re right. But the standing issue will have to be resolved before any merits.

  4. dms says

    I’m no legal scholar so I am still confused. If the 9th CCoA grants the stay, WHEN might they do that? Could it happen tomorrow? If not, how soon? Obviously if they grant the stay, no marriages. From the outline it seems unlikely they will be able to grant the stay, but since they can, I just don’t get the timeline of when that could happen. If it happens in two weeks, then i guess marriages can happen in that window from next wednesday until the stay is granted. RIght?

  5. Ari says

    I’m sorry for any confusion, DMS. If you’re confused, I didn’t do my job.

    To answer your question, we cannot be sure exactly when the Ninth Circuit will rule on a stay. First, the Prop 8 proponents have to submit their papers asking for a stay and those in favor of letting same-sex marriages go forward will have a chance to submit briefs in opposition. This will be pretty quickly done because the nature of a stay is that you’re arguing that we must do this now because if we don’t, I’m going to be harmed.

    The Ninth Circuit can issued its ruling before August 18, if all papers are in, or they may take a bit more time. If they take more time and do in the end grant the stay, there will be a period of same-sex marriages that will occur in between.

    So, I guess you understood more than you thought! :)

  6. Rin says

    I think it looks very positive for same sex marriage. The opposing team does not have any evidence of “harm” so…looks like gay marriage is a go. :)

    Congrats everyone.

    I honestly believe things are getting better. My kids (6 and 4) don’t even bat an eye over same sex couples. I simply told them when they asked “those people love each other”. They know what love is so that’s all that needs to be explained by any parent to a child. Kids understand love. More and more kids will grow up believing that love is what matters, not what you look like on the outside.

    Love is all that matters.

    God bless, ya’ll!

  7. Jeff says

    I’m guessing that the 9th Circuit and a majority of Supreme Court Justices are happy to dodge this case for now, leaving marriage equality in California and our handful of other states, as the issue gets worked out in additional states in the years ahead. The tide seems to be turning our way, and they might prefer to let it continue a while longer if they can. The standing issue gives all the appellate courts a chance to avoid confronting the sweeping constitutional issues head on.

    In the meantime, Judge Walker’s analysis may help persuade several more states that our rights are being violated. We have an excellent template for future federal district court trials!

  8. Jon Davidson says

    The Ninth Circuit also might grant a temporary stay before August 18th to give themselves more time to decide whether to issue a stay pending appeal (just like Judge Walker did last week). If they do that, same-sex couples will not be able to marry until the stay issue is resolved. And, even if they Ninth Circuit denies a stay, they may issue a temporary stay at that point (as Judge Walker did today) to give the Supreme Court a chance to way in on the stay issue, if the Court wants to.

  9. Strepsi says

    @ ARI EZRA WALDMAN
    Thanks for the great posts, breaking it down into layman’s terms and real possibilities.

    @ ANDY TOWLE – great idea for a Towleroad legal correspondent: please keep the ARI posts coming!

    @ RIN – my nieces didn’t bat an eye either. I just said when they were like 5, “Some boys love girls and some boys love boys and some girls love girls and some girls love boys” and they went “Yeah”.

    CHEERS to CALIFORNIA

  10. Chris says

    Jeff, I think you’re right, both the 9th circuit and Scotus would rather let this play out in the states, the standing issue here is a perfect excuse for that. Ari, can you weigh in on that? Also why would it take a year or two to determine standing in this case? That seems very long. Isn’t standing in a case like this a pressing issue and a fairly straightforward one?

  11. Brian says

    So, I am a lawyer, and I’m a bit perplexed by the standing issue that is being raised now. How were the Prop 8 opponents allowed to intervene as defendants if the court is questioning their standing now? I don’t see anything in Rule 24 that would allow intervention by people who do not have a cognizable interest in the outcome, and as a result standing.

    If the Prop 8 proponents didn’t have standing in the first place, what does that do the results of the trial? They intervened because the state conceded in the unconstitutionality of Prop 8.

    The Towleroad comments aren’t the ideal place for arcane legal discussions, but you have given this more thought than anyone I’ve read anywhere else.

  12. Chris says

    still a bit of confusion here. I see two scenarios with at the end with regard to whether or not proponents have the right to appeal, not one. correct? in the case that they are found NOT to have the right to appeal, it may take 1-2 years. if they do have the right, it may take 3-5 years. will same-sex couples be allowed to marry during that time in both situations?

  13. Ari says

    Chris, I think Jeff’s point has merit. There are two canons among lawyers and judges that, where possible, (1) a court should not decide more than it has to and (2) that if there is a way to deal with a case without reaching a Constitutional question, deal with it that way. The latter canon comes up when a court can decide a case as a violation of a statute AND as a violation of the Constitution. The court will normally conclude on statutory grounds and state that it need not address the constitutional question. So, deciding the standing issue against the Prop 8 proponents is an easy tool in this area.

    That is not to say that a court can’t decide a constitutional question not directly before it. Chief Justice Roberts has done that often, to the consternation of other justices who have, as a result, read their dissents out loud on the issue.

    In any event, the Supreme Court need not take the case and may want to avoid the hot-button issue. But, there are a number of scenarios. Justices Ginsburg and Breyer are good strategists on the Court as well as whip smart. You can bet that if they know they have Justice Kennedy on their side, they are going to grant. If neither side could be sure of Justice Kennedy’s vote, they may deny review. A colleague of mine suggested this counter-intuitive, but plausible scenario: The moderates on the Court have an ally in Justice Kennedy, Justice Roberts puts himself in the majority and assigns himself the responsibility of writing the opinion. That way, he can keep it as narrow as he wants. I suppose that’s possible, too, though I have to admit, it does not occur to me as likely.

    As for timing, I don’t think anyone can speak to that with any real accuracy. I have worked on appeals where there were 4 week periods allowed for writing and submitting briefs, but the decision didn’t come down for another 18 months. So, who knows?

  14. Ari says

    Lots of excellent questions. I’ll do my best despite my fingers’ fatigue.

    @Brian: The requirements of permissive intervention are different from requirements for standing on appeal.

    To establish that they have standing to appeal the court’s decision under Article III, Section 2 of the Constitution, proponents must show that they have “suffered an injury in fact, which is fairly traceable to the challenged action and is likely to be redressed by the relief requested.” Didrickson v. United States Dept of Interior, 982 F2d 1332, 1338 (9th Cir 1992). When they requested to intervene at trial, Judge Walker determined that proponents had a significant protectible interest under FRCP 24(a)(2) in defending Proposition 8. But, now, that interest may well be “plainly insufficient to confer standing.” Diamond v. Charles, 476 US 54, 69 (1986).

    As Judge Walker stated, the standards are different. If the California officials do not appeal and Prop 8 proponents want to appeal on their own, they have to show standing independent of California.

  15. Ari says

    @Ryan: Super good question. At this point, we cannot say that this decision has much to do about other states’ ban on same-sex marriage. It may, depend on the decisions that come down, and then again, it may not.

    Here are some arguments:

    1. Prop 8 is unique to California. As we know, this particular history to California’s ban on same-sex marriage hasn’t been duplicated elsewhere. So, the arguments and facts and plaintiffs and so on can be construed as unique to this particular history. If that is persuasive to judges, any Prop 8 decision could be limited to California. And that could be the result even if the Supreme Court affirms Judge Walker’s decision.

    2. The Ninth Circuit doesn’t cover the whole country. Even if we assume that an appellate affirmance will have reach outside California, the Ninth Circuit could say Judge Walker’s decision stands not just for California, but against all same-sex marriage bans. If the Supreme Court does not take the case, marriage equality becomes a reality in the Ninth Circuit, i.e., only out west. That is what has happened in a “Don’t Ask, Don’t Tell” case out west called Witt v. Department of the Air Force. I’d provide you with a link, but I’m sure how to do that in a comment.

    Sorry to not have a definite answer on this, but it’s the nature of the beast when there are a number of forks in the road ahead.

  16. Ari says

    @Chris: Maybe, maybe not. That infuriating answer seems to be a pattern here. Sorry!

    Any court can issue a temporary stay so they, or their superior court, can decide any issue. So, that means that now, the Ninth Circuit can issued a stay until they decide everything, or they can issue a stay until they decide the standing issue. Or, they can tell same-sex couples to “come on down the aisle” while they decide. The Supreme Court can also issue a stay pending any of this. So, there is a chance that no same-sex marriages will happen during these years, and there is a chance they will start and stop (unlikely) and there is a chance they could keep happening as it moves through the courts.

  17. Paul R says

    Oops, I meant to add a question of my own. Someone else asked about the implications for other states. I assume that if Prop 8 proponents prevail in their appeal and the 9th court rules in our favor, that will only affect CA.

    But if SCOTUS accepts the case for review (how many justices have to agree for that to happen, anyway? I couldn’t find it in a brief search), would its decision reach beyond CA? Or could they say it only involves the CA constitution and so doesn’t affect other states? Sorry to be displaying my ignorance on whether the top federal court can limit its rulings to individual states.

  18. Chris says

    Ari – when the justices vote on cert do we know who voted which way? It only takes four votes to grant cert, yes? I doubt that scenario with Roberts makes too much sense, but in the light of Lawrence and that he’ll be on the court for a long time, I wouldn’t take Roberts for granted as a vote against us. I think his concerns are more about protecting business interests than in social issues.

  19. Ari says

    @Paul R: See my response above about extra-California implications. I hope that’s clear. Actually, its completely unclear! :) And that’s because it could hinge on the type of decision handed down.

    And, it takes 4 votes to grant cert.

    @Chris: Fair point. We shouldn’t pigeonhole anyone, right?

  20. Christopher says

    In all of this deserved back-slapping one person seems a bit left out—Judge Vaughan Walker. THANK YOU THANK YOU THANK YOU with all of my (admittedly bitter black) heart! You are a man of courage and lucid, persuasive intelligence. I LOVE YOU! (will you marry me?)

  21. peterparker says

    @Ari…thank you so much for the legal analysis!!!

    @Andy Towle…I agree with another person’s comment that a legal section of towleroad is a nice fit for the site.

  22. Keith says

    Thank you to Ari, Andy, Judge Walker, and everyone who has fought the hard, long fight. While victory seems near at hand, let’s not forget that the fight must continue for the hearts and minds of everyone that our marriages and relationships are equal and just like everyone else’s in this great land of ours.

  23. David says

    Ari! Thanks for a superb write-up, but more than that, for many incredibly helpful and detailed responses to people’s questions. And absolutely brilliant job, thanks!

  24. Mike says

    Here is something that wasn’t covered in the comments, but I read elsewhere – the concept that even if a stay is granted that doesn’t prevent California from deciding to start issuing marriage licenses. The argument goes like this… the ruling has been made and is valid until when and if it is overruled. A stay simply says that you cannot be forced to obey it… it doesn’t mean can’t obey it. Since California has stated it doesn’t want the stay, wouldn’t they be free to start marriages immediately?

  25. Mike says

    This is the comment regarding the “stay” which I thought was interesting…

    All a stay does is prevent the Court Clerk from entering judgment. It does not erase Judge Walker’s decision, and it does not prohibit the defendant (the State) from voluntarily complying with the decision by issuing marriage licenses to all couples, regardless of gender. A Federal District Judge has declared that Prop 8 is unconstitutional. Even if judgment in the case is stayed pending appeal, it would be perfectly reasonable for the State to decide that it will stop enforcing Prop 8 until and unless Judge Walker’s decision is reversed by another Court.

    If the State began enforcing Judge Walker’s opinion on its own, I would expect the Prop 8 supporters to file a new lawsuit (in State Court) seeking an injunction requiring the State to enforce Prop 8. This might bring back memories of 2004 when the Supreme Court held that the City and County of San Francisco did not have the authority to issue marriage licenses to same-sex couples. However, that case (Lockyer v. City and County of San Francisco) was based on California Constitution Article III, section 3.5 which prohibits administrative agencies from deciding on their own to not enforce laws based on their belief that the law is unconstitutional. However, if the Governor or the Attorney General made that decision, section 3.5 does not apply. I haven’t researched it, but I don’t know that anything would prohibit the Governor or the Attorney General from deciding to enforce a District Court’s order declaring Prop 8 invalid, even if that judgment were stayed pending appeal.

  26. Zlick says

    Heheh, great question. Now I’m really curious about that.

    Oh, and about this: Walker ordered that defendants and all persons under their control or supervision cease to apply or enforce Proposition 8. But that doesn’t erase the change to the California Constitution, does it?

    Does that language about marriage being valid in California only if between a man and a woman remain on the books, but its simply not enforced? Or is it somehow deleted from the Constitution?

  27. John says

    @Mike

    Unfortunately, this has already gone through the state courts and there is an order already in place.

    Until the stay is lifted, the California Supreme Court’s decision upholding Prop. 8 from March 2009 still stands. The governor and attorney general cannot pre-judge the process. Without a valid federal court order in hand, the only legal guidance they have is that awful opinion from Ronald George and company declaring the “sovereignty of the people” to define marriage as they see fit.

  28. John says

    @Zlick

    The same-sex marriage ban is still part of the California Constitution regardless. And it will probably take decades to get rid of it. Alabama voters didn’t remove their state’s constitutional ban on interracial marriage until 2000. Which is a full 33 years after the U.S. Supreme Court ruled that such laws were unconstitutional under the federal constitution. And even then, the repeal effort only received 60% of the vote. A full 40% of Alabamans thought that their illegal, unenforceable ban on interracial marriage should stay in the books because you never know when slavery might become fashionable again!

  29. lazlo says

    I feel like we have a chance when I read the updates here but when I watch the daytime talking heads on MSNBC I feel like things could get dragged out and possibly go against us. I really dislike Andrea Mitchell and that other white guy ( I think he’s filling in for Ed). They jumble their words and speak so inarticulately that they confuse me sometimes. I can’t understand why they were picked to host shows.

  30. TheNiebur says

    There’s a multitude of reasons why ♥Towleroad♥ is THE best site on the net. And now Ari is one of those reasons. Awesome!

    ☥♂ ♥ ॐ मणि पद्मे हूँ ♥ ♂ ☥

  31. Mike says

    @John – The California Supreme Court is only the final word on state law. This is now a Federal issue. Walker has ruled that the state is violating the US Constitution. To paraphrase Justice Kennedy’s words in Romer… “This California cannot do…” According to what I read, the decision is stayed, but not over-ruled. I guess it all gets to the definition of stay. Typically, the state would not agree with the ruling, but in this case the state (Schwartzenegger, Brown) does. The article I read implies that a stay means you cannot be compelled to enforce the ruling, it doesn’t mean you can’t choose to honor it. As it stands right now until otherwise overridden, Prop8 is unconstitutional. The state isn’t prejudging the process, since the ruling is the ruling. It would be fascinating to watch if that actually happened. It would give new definition to the word “shitstorm”. The NOM people would all collectively be doing Linda Blair exorcist impressions.

  32. Jessica Naomi says

    Who could have standing? Would the California voters who voted for Prop.8 have standing arguing the decision harmed them, represented by the Prop. 8 proponents? Do you see any other possible arguments for standing they could make that the 9th circuit might agree with?

  33. wimsy says

    Excellent analysis, questions, and responses. This has to be the best-informed group on this issue.

    I’d like to take just a moment to recognize the amazing hypocrisy of gay rights groups whose leadership vehemently opposed bringing this lawsuit, but who are now using it as an excuse to fundraise, taking credit for the victory and implying that the whole thing was their idea. No lack of shameless audacity there!

  34. Ari says

    @Mike: Thanks for your comment. I’m not sure where you found that comment, but there are a host of reasons why that simply cannot be. I won’t address them all, but, as a preliminary matter, a party cannot just go ahead and violate a temporary injunction. A stay order is just as much an order from a court that you have to follow than any other order to, say, turn over documents, appear as a witness or issue marriage licenses. A stay does not just mean you can’t be forced to do something. It actually delays implementation of a rule or order until a certain time. Try to this about it this way: You have the right to watch tv, but your mother says you can’t watch tv until you finish your homework. If you start watching tv before you finish you’re homework, you’re going to be held in contempt by your mom and be grounded for a week. Your mother’s rule that you can’t watch tv until you finish your homework is a stay. You can’t just violate her stay order, even though you undoubtedly have a right to watch tv.

  35. Sean says

    Ari, let me echo the thanks and praise of others for your analysis and putting it in terms we laymen can grasp.

    Looking forward to your thoughts on the interveners’ motion for an emergency stay pending appeal at the 9th circuit, particularly their use of overridden precedent (Bowers v. Hardwick) and seeming ignorance of the substance of Loving v. Virginia – i.e., failure to comprehend the substance of the constitutional finding (of course it involved upholding opposite sex marriage, as that is all we knew at the time!).

  36. Mike says

    @Ari: I got it from the Calitics site:
    http://calitics.com/diary/12276/prop-8-stay-standing

    I thought it might be too good to be true, and was an interesting theory. I guess however if the Prop8 folks can’t show how it is going to cause THEM harm (which to this point they haven’t except to say it is going to cause issues with God’s plan for the Mormon afterlife – which isn’t admissible I don’t believe) then a stay should be refused by the 9th Circuit. After reading everything I just can’t imagine them getting a stay unless it is – dare I say it – judicial activism… 😉

  37. Ari says

    @Mike: Thanks for the link! And, thanks for doing research on your own. There are lots of voices out there and no one should take my word as gospel any more than any other voice. That said, while the Calitics poster in that link has posted some good things, I just don’t think he/she is correct in this regard. I could be missing something, so I am going to do some research and get back to you just to make sure.

    You’ve also hit on the key to any stay motion. You have to show how it directly harms you and how you were hurt. I go back to the baseball analogy. Padres vs. Mets and due to a botched umpire call, the Padres win, propelling them into first place in the NL West. The last place team in the NL West cannot object to the game and botched call because it really didn’t hurt them, other than to put them just a big further away from first place.

    Thanks for your comments!

  38. Jollysocks says

    Yes Ari, like Sean, I too would love it if you could weigh in on the merits of Yes on 8’s motion for emergency stay to the 9th District pending appeal.

  39. says

    Enough with these white, conservative Republican sponsered “anti-immigration” and “defence-of-marriage” initiatives designed to keep the Dems “off-balance” to the detriment of hispanic and gay minorities!

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