9th Circuit panel stays District Court ruling, pending appeal, determination of standing...
By Ernest A. Canning on 8/16/2010, 4:56pm PT  

Guest blogged by Ernest A. Canning

Proponents of equality for all will have to wait a bit longer --- again --- before seeing marriage equality return to the Golden State.

A three judge panel of the U.S. 9th Circuit Court of Appeal has issued an order [PDF] granting a motion to stay the Aug. 4, 2010 decision by a U.S. District Judge which had found California's ban on same-sex marriage to be unconstitutional. Judge Vaughn Walker's ruling would have allowed marriage equality to resume as of Wednesday, but that is now on hold pending appeal by proponents of the constitutional amendment put into law by Proposition 8 in November of 2008.

The 9th Circuit panel, on its own motion, expedited both briefing and a hearing on the appeal, which will be scheduled for the week of December 6. The stay essentially means that California officials could not sanction new same-sex marriages until either a decision is rendered on the appeal or the panel lifts the stay.

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Addendum In my haste to report on this breaking story, I neglected to include the following statement from the 9th Circuit decision...

[I]n addition to any issues appellants wish to raise on appeal, appellants are directed to included in their opening brief a discussion why this appeal should not be dismissed for lack of Article III standing?

As explained by Prof. Erwin Chemerinsky in the Los Angeles Times:

For decades, conservative justices on the Supreme Court have ruled to limit who has standing to bring a claim in federal court. In cases involving civil rights, environmental protection and the separation of church and state, the court has ordered that cases be dismissed because the party pursuing the case had no legal standing to do so....

The Supreme Court long has held that in order to meet this requirement, a person or group pursuing legal action must have standing, a status conferred only on those who have suffered a direct, concrete injury. An ideological objection to a government action, no matter how strongly felt, is insufficient for standing.

While the named defendants, Governor Arnold Schwarzenegger (R) and Attorney General Jerry Brown (D) have standing, both filed briefs opposing a stay of Judge Walker's decision. The proponents of Proposition 8, Chermerinsky concludes, cannot demonstrate that they have suffered a direct, concrete injury.

[Hat-tip to BRAD BLOG commenter "Hankydub" for calling this to my attention.]

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Ernest A. Canning has been an active member of the California state bar since 1977. Mr. Canning has received both undergraduate and graduate degrees in political science as well as a juris doctor. He is also a Vietnam vet (4th Infantry, Central Highlands 1968).