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.
Addendum In my haste to report on this breaking story, I neglected to include the following statement from the 9th Circuit decision…
As explained by Prof. Erwin Chemerinsky in the Los Angeles Times:
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.]
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).
Justice delayed, is justice denied.
Sorry about those wedding plans, but we don’t have a justice system, we have a system of laws.
If you want to get married by the state, you’ll have to ask the state for permission. Once you submit to their authority by asking for permission, they may or may not grant it.
Back to jumping the broom.
If I understand the process correctly, this is good news. As it stands now, Judge Vaughn’s decision only applies to California. If the 3 judge panel upholds Vaughn, then the status is the same. If, however, the defendants further appeal and the district sits “en banc” and again upholds Vaughn, then his decision applies to ALL of the states of the 9th District. That’s Nevada to the ocean.
Sadly, the Massachusetts decision didn’t get to this point so the decision there only applies there and not to the entire 1st District.
First, TomaHawk, the risk of the “process” is that an appellate court could overturn Judge Vaughn’s ruling. (I predict that the 9th Circuit will uphold Judge Vaughn’s decision).
If, however, the 9th Circuit ultimately upholds Judge Vaughn’s ruling, it would have implications beyond CA because Judge Vaughn’s ruling is that it is a denial of the federal constitutional rights for any state to deny a couple’s right to wed on the basis of gender.
If the 9th Circuit ultimately upholds Judge Vaughn’s ruling and the Prop 8 proponents seek a hearing before the U.S. Supreme Court, there are several things that could happen.
The Supreme Court could decline to hear the case and allow the 9th Circuit ruling to stand. In that event, the 9th Circuit ruling would likely be followed by other District and Circuit Courts.
The Supreme Court could grant a hearing and issue a stay pending its ruling on the merits–just as the 9th Circuit has done here.
The Supreme Court could grant a hearing but deny a stay, in which case CA could sanction same-sex marriages.
While many constitutional scholars predict that Judge Vaughn’s decision would be upheld by a majority of Supreme Court Justices, all litigation carries a risk of loss, so one cannot rule out the possibility that these appeals could lead to a reversal of the key element of this case–that a state’s (any state’s) effort to ban same sex marriage is unconstitutional.
I have not read the decision here, but some right wing blogger told me that this appellate court suggested that the defenders of prop 8 actually might lack the standing to appeal the ruling, that Gerry Brown would have to argue the appeal.
I usually assume these guys are lying their heads off…but I was hoping that for once they were right.
Yeah, I just looked at the PDF you provided and check the last sentence out:
“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.”
Sounds to me like this appeal will be dismissed on those grounds.
Hey, Ernie, did you read any of the motions that were filed in the Ninth Circuit? Just curious. I downloaded the religious nuts’ motion for stay and am ocr-ing it in case anyone wants to see it. I suspect that the panel granted a stay so that they would have tight control over the briefing schedule, since they condition the stay on hurrying up the appeal. It’s my impression that a single US Supreme Court justice could have granted a stay and the Supreme Court is the most Catholic-ridden court in history.
Ehmegawd thanx for the love Ernie!
I feel special.
Paul McCarthy @6: Haven’t read the briefs/motions. Barely had time to read the decision. Please feel free to provide links to any briefs you would like reviewed and I’ll try to find the time to review them.