ORIGINAL, EARLIER POST:
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.
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.