Ninth Circuit Denies Request to Lift Stay in Prop 8 Case: ANALYSIS


On March 17, the legal team led by Ted Olson and David Boies filed its final brief with the Ninth Circuit asking that court to lift the stay that keeps same-sex couples from enjoying the right to marry in California. Olson's and Boies's compelling argument reminds the court that none of the usual requirements for a stay existed in this case and yet by taking away rights from committed same-sex couples, the stay does significant damage to basic fundamental rights. Therefore, the stay should be lifted immediately.

Prop8 The marriage equality team has offered a number of arguments over the course of the stay-related briefing — the lack of real harm to Prop 8 proponents from lifting the stay, the enormous burdens on same-sex couples if the stay remains, the changed circumstances that make the stay even less valid now, and so on — but one of the most compelling arguments is that the basic requirements for a stay never existed in this case.

For a court to grant a stay, the party wanting the stay — the moving party, or party making the motion for the stay — has to make a "strong showing" that it "has a likelihood of success on the merits." In other words, the moving party has to show that it is more likely than not to win the underlying case. But, the Prop 8 proponents never showed that. Their case was so wholeheartedly decimated at the district court and their appellate argument was so flimsy that no rational judge could find a likelihood of success on the merits.

What's more, as Olson and Boies note in their most recent brief, there is no conceivable way the Prop 8 proponents could meet that likelihood standard. The fact that the Ninth Circuit certified a question to the California Supreme Court to get an "authoritative determination" about the Ninth Circuit jurisdiction — this is the standing issue — means that the court's jurisdiction to hear the case is up in the air, completely uncertain, as yet unknown. Therefore, "[e]ven if this Court has the authority under Article III to maintain a stay when it harbors doubts as to its own jurisdiction, the existence of such doubts means that the maintenance of a stay is inappropriate because the absence of a clear path to jurisdiction precludes the possibility that the party asserting jurisdiction has made the requisite “strong showing” of likelihood of success on the merits." In other words, if no one knows if the Prop 8 proponents have standing to appeal Judge Vaughn Walker's decision declaring Prop 8 unconstitutional, the Prop 8 proponents could not show that they would be successful in the case.

This seems like an effective, air-tight argument. Why, then, do I feel that the stay is likely to remain in place?

Let's hope I am wrong, but here is some analysis:

If I were making the Prop 8 Proponents' argument on maintaining the stay, I would argue that a showing of likelihood of success is independent of a showing on standing. Courts have jurisdictions to determine if they have jurisdiction, but the question of a stay refers to the moving party's likelihood of success on the merits, assuming the case ever reached the merits. In other words, the fact that jurisdiction is unsettled is irrelevant to success on the merits. That is a tough argument to make, but not unreasonable. Olson and Boies are correct: If you cannot even get to the merits, you can hardly argue that you will be successful once you get there.

So, let us assume that the Olson/Boies stay argument is air-tight. The stay is still unfortunately likely to remain for two reasons.

First, courts are loathe to question either themselves or lower courts when it comes to stays. In the federal courts, stays are even less likely to be overturned than lower court orders/decisions. Generally, while an appellate court can review the legal requirements for a stay on its own, it will generally defer to the administrative decisions and factual determinations of the lower court. And, if the stay is granted by the appellate court itself, lifting the stay is even less likely, given how loathe courts are to overturn themselves.

Second, for better or for worse, marriage equality is the classic "hot button" political issue that is occupying the political sphere. We may argue that our rights should not be subject to the whims of politics and legislatures, but our rights are indeed the subject of debate in every state and in Congress. And, in most cases, state legislatures and the U.S. Congress are working out issues of marriage equality through political debate in addition to litigation. In that context, courts gets skittish. Even judges who agree that arguably fundamental individual rights should not hinge on a given year's political majority do not like to dangle their feat into political matters. Therefore, even though the "political-ness" of the underlying issue in a given case is not a factor to consider in granting a stay, the controversial nature of the case tends to encourage courts to put on the breaks — better maintain the status quo while the political and judicial paths work themselves out.

I offer these arguments with a heavy heart. I would like to see the stay lifted, but getting stays lifted in even run-of-the-mill civil cases is difficult, let alone in hot button political cases. We can only hope that the Ninth Circuit will realize the inconstency, notice the inequality that the stay maintains and bring marriage equality back to California post haste.


  1. Chris in Irvine says

    Soooo…are we screwed here in CA? Because this case seems to be moving nowhere…We just have to wait until what? What’s going to trigger the courts to review and make a decision?

  2. Dana says

    Hi Ari,

    Always insightful,thank you for your analysis. when the court first issued its stay, the argument of justification was the potential harm a temporary issuance of marriage licenses could cause gays and lesbians should the lower court eventually be overruled. AFER did not address that issue in its latest brief. What also wasnt addressed was the perception of judging merits before a ruling. Should the court lift its stay after having heard oral arguments, it would be a ruling before the ruling, essentially saying proponents have less than a good chance of succeeding before they issue their formal “you have no case” ruling.

  3. says

    @Chris: thank you for your comment. i wouldnt say we are screwed here in California. the case is indeed moving along, but just slower than most of us had hoped. we first have to wait until the California Supreme Court issues its ruling on the certified question of state law for proponents standing. that wont happen for a little under a year. shortly thereafter, the 9th Circuit will issue its ruling, either deciding it has no jurisdiction (because no standing) or deciding the merits. that decision could be appealed either way. if the stay remains in place that entire time, all the way through to the Supreme Court, we are looking at a little over 2 to 2 1/2 years. in the scheme of things, that is not a long time to determine our rights. every day brings us closer to a growing national majority in favor of marriage equality. besides, we cant be screwed here in California… the weather is awesome here in SoCal. :)

  4. Dana says

    @ari @chris

    Yes, we are screwed. Sorry Ari but like I mentioned before the year long dithering of our supreme court puts this into 2012, when political forces on our side are supposed to be gathering signatures to put prop 8 back on the ballot. This wont happen while this case is in the courts because the issue will become moot and our federal case will end and AFERs efforts will be for nothing. EQCA and others will choose to save their money while the case goes on, the CA supreme court will create a new and dangerous right for proposition holders to take the authority of the state, the panel of the 9th may not rule till 2012 and Ari’s belief that SCOTUS may rule in less than 3 years is optimisic at best, history shows that such types of cases may be tied up for a decade or more and SCOTUS is in no hurry to intervene… We’ve been “fast tracked” by the courts and that takes us into 2012.. Do the math

  5. jexer says

    @ari- Just thanks for the excellent write-ups, nice to see a fellow San Diegan involved in this! =)

    As a non-law type… there’s so much I still don’t understand about this stay. It’s in the best interests of the prop8 supporters to delay as long as possible. They need never actually successfully appeal Judge Walker’s decision as far as I can tell. But with the stroke of a pen, his ruling was ‘effectively’ reversed anyway.

    As far as I can tell, the stay needs to be repealed, if only to give the prop 8 defenders cause to pursue the appeals process rather than merely engaging in this delaying tactic.

    Anyway… thanks again, and looking forward to your next update!

  6. Mike says

    When are the public protests against the continual delays by the courts going to start? Haven’t we as a community learned anything over the past 40 years?

  7. Chadd says

    I think that this is a set back in that it reveals that the court is willing to grasp at ANY straw, no matter how vague or unrelated, so that it can deny equality to gay Americans.

    It seems the court, like many anti-gay people, can be presented with every valid argument on the planet. They can have every objection knocked down and they can present zero facts (not based in religion) to support their cause. When all of their reasons are stripped away and all they have left is “I just don’t think it’s right” – somehow, they STILL win.

    I know equality is a long fought battle, but it is supremely frustrating when we successfully refute every lie and debunk every stereotype and still we can’t be treated equally – just because someone else “just doesn’t like it”

  8. Zlick says

    Shameful to even hide behind the smokescreen of “no changed circumstances” when the President of the United States has recently instructed his Justice Department to cease defending DOMA in courts of law because it’s unconstitutional. If Southeast Alaska is all the Ninth Circuit justices could come up with to cover their political-calculating asses, then they are even worse lawyers than they are judges.

    Oh, I understand completely how politics plays into this, but shame on all judges who bow to politics above the law. Disgraceful.

  9. Randy says

    The court has ignored rules and precedent, in favor of politics.

    This is no surprise, for those familiar with Bush v Gore. Courts are simply another place where politics happens. Once a decision is reached, judges then work backward to find the justifications for it. We like to pretend it’s not true, but we all know it. Was there ever such a thing as integrity?

  10. I'm Layla Miller I Know Stuff says

    The letter of the law versus the spirit of the law

    The letter of the law versus the spirit of the law is an idiomatic antithesis. When one obeys the letter of the law but not the spirit, one is obeying the literal interpretation of the words (the “letter”) of the law, but not the intent of those who wrote the law. Conversely, when one obeys the spirit of the law but not the letter, one is doing what the authors of the law intended, though not adhering to the literal wording.

    “Law” originally referred to legislative statute, but in the idiom may refer to any kind of rule. Intentionally following the letter of the law but not the spirit may be accomplished through exploiting technicalities, loopholes, and ambiguous language. Following the letter of the law but not the spirit is also a tactic used by oppressive governments.

  11. X says

    Screw this garbage!! Why are we paying taxes to a country that *still* is hurting us?!? I’m sick of it! It’s like we’re paying for our own and other gay kids’ oppression! I don’t want to keep causing this blatant injustice and I am hating being damaged by my own country!

  12. Marco Luxe says

    Is there any chance to request a rehearing on the stay en banc?
    It really chaps my ass that none of the four Hilton elements weigh in favor of the prop8ers, and that the 9th C panel can just issue a perfunctory ruling.

    The mainstream press needs to explain how thoroughly the prop8ers failed all requirements for a stay, but yet the court cowardly defaults to the status quo ante.

    Didn’t SCOTUS admonish the 9th C to follow the rules closely in deciding to televise the trial proceedings? That was a close call, but the elements for a stay are set by SCOTUS and are crystal clear as applied here.

  13. says

    @marco: thanks for your comment. it is certainly possible to request a rehearing en banc and while the AFER people are mum on any final word, I doubt the Olson/Boies team will go ahead with a motion for en banc reconsideration. it is too remote a possibility for the stay to be lifted to waste previous resources.

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