Can the Prop 8 ruling even be appealed?
There was drama in California on Friday. The U.S. Court of Appeals for the 9th Circuit sent word that the plaintiffs in the Proposition 8 case had until 11 p.m. that night to file papers explaining why a stay of Judge Vaughn Walker’s decision this month striking down a ban on same-sex marriage should be lifted on Aug. 18. The court gave supporters of Prop 8 until 9 a.m. Pacific time today to respond. But if you ask me the real drama is not over whether gays and lesbians will be able to get marriage licenses come Wednesday. It is whether the case will actually advance to the court of appeals. If the court decides that Prop 8 proponents lack standing to appeal to it, then, as one gay legal eagle told me, "[N]o standing, no defendant, no appeal . . . we win, case over."
As Judge Walker pointed out in his decision on a temporary stay, “If the state defendants choose not to appeal, proponents may have difficulty demonstrating Article III standing.” He goes on to say, “As it appears at least doubtful that proponents will be able to proceed with their appeal without a state defendant, it remains unclear whether the court of appeals will be able to reach the merits of proponents’ appeal. In light of those concerns, proponents may have little choice but to attempt to convince the Governor or the Attorney General to file an appeal to ensure appellate jurisdiction.”
And that’s sooo not happening since both Gov. Arnold Schwarzenegger (R) and Attorney General Jerry Brown (D) are vocal in their support for overturning Prop 8. Brown even filed papers late Friday with the court of appeals calling for marriage licenses to be issued immediately. If the court grants the stay of enforcement of Prop 8, same-sex marriages would be legal again in the Golden State later this week. But if the court also decides that Prop 8 proponents lack standing to appeal to it, then the march to the Supreme Court would stop -- much to the relief of some advocates of marriage equality.
Many of them would rather see the Massachusetts case get to the high court first. Unlike the plaintiffs in the Prop 8 case, who are seeking the legal right to marry, the couples in Gill v. Office of Personnel Management are already legally married. They are seeking the same access to federal benefits that are now enjoyed by straight married couples in the commonwealth. It’s a narrower case. But it is one that gay legal advocates strongly believe could prevail at the Supreme Court.
When it comes to what the 9th Circuit will actually do, anything is possible. For instance, one legal advocate told me that the court could grant a longer interim stay than Judge Walker imposed while it assesses the questions, including standing. This advocate added that the court could also prolong the stay to allow proponents of the California law to appeal to the U.S. Supreme Court to make the stay permanent throughout the appeal process. And get this: If the question on the stay does go to the Supreme Court, it would initially be reviewed by Justice Anthony Kennedy, who oversees the 9th Circuit and who is thought to be the swing vote if a case on same-sex marriage were to make it to the high court. As a result, any action on whether to hold the stay in place “could be read by some as an early telegraph of where the court is,” said the advocate.
So, the drama continues in California. All that’s missing is a car chase.
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