Phil Reese

9th Circuit stays Walker's Prop 8 decision

Filed By Phil Reese | August 16, 2010 8:00 PM | comments

Filed in: Politics
Tags: litigation, prop 8 appeal, prop 8 case, prop 8 decision, prop 8 ruling, stay, trial

At least until after the appeal hearing on December 6th, there will be no joy in Mudville--call off your Wednesday wedding plans, the 9th Circuit has just released this decision on the Defense's request for a stay of Judge Walker's decision in the Perry V Schwarzenegger case. Walker had previously set his stay to expire tomorrow.

"Filed order (EDWARD LEAVY, MICHAEL DALY HAWKINS and SIDNEY R. THOMAS) Appellants' motion for a stay of the district court's order of August 4, 2010 pending appeal is GRANTED. The court sua sponte orders that this appeal be expedited pursuant to Federal Rule of Appellate Procedure 2. The provisions of Ninth Circuit Rule 31-2.2(a) (pertaining to grants of time extensions) shall not apply to this appeal. This appeal shall be calendared during the week of December 6, 2010, at The James R. Browning Courthouse in San Francisco, California..."

Thanks to Rex Wockner for getting the news out so quick!

From the Prop8TrialTracker site:

First, and drastically most importantly, the Court *granted* the stay. Consequently the thousands of couples who were waiting for the day of equality will have to wait at least a few more months until December.

Second, the Court wants this case to be resolved quickly. Appellants' opening brief is due in just a month and the hearing will happen on December 6th. This is lightning quick for a Federal Court of Appeals, and it's a very good sign. The Court understands that this case is important, and it doesn't want it to linger.

Third, the Court specifically orders the Prop 8 proponents to show why this case should not be dismissed for lack of standing. Here's a discussion of the standing issue. This is very good news for us. It shows that the Court has serious doubts about whether the Appellants have standing. Even better, the Court is expressing an opinion that its inclination is that the case should be dismissed. That being said, the panel that issued this Order (the motions panel) is not the same panel that will hear that case on the merits. The merits panel will be selected shortly before December 6th and we don't know the three judges who will be on the merits panel. But this is a very good sign that the appeal could be dismissed on the ground of standing alone.


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It seems to me that even granting the stay is in effect giving standing in this case. If there wasn't any standing, then who got they stay?

I suppose the glacial ways of federal courts wouldn't address that question up front, but it is a head-scratcher, at least in my non-attorney eyes.

It might be an expediteted schedule, but it still sucks.

Rory I have been cynical since Judge Walker ruled. Seems to me this is all orchestrated by the elite to provide both a path to change and entertainment for the masses along the way. The focus now returns to the fall elections. Its all too much like a play where the purpose is to distract attention away from the real issue of wealth concentration. The one real threat to the elite is that the masses will unite against them. If that happens it is game over for the "masters of wealth".

To be totally honest I HOPE they ARE granted standing. If they are not granted standing, and the appeal is dismissed, Walker's ruling would only apply to California. Likewise, if it was affirmed in the 9th Circuit, but then dismissed by the Supreme Court--again it would only apply to states in the 9th Circuit. However, if it gets its day in the Supreme Court, the SCOTUS could strike down marriage prohibitions nation-wide.

I hope the best for California, but there is an America beyond the Pacific and Atlantic coasts--as much as they forget--and the victories there just don't translate to much change here. If we want a victory, why not a victory that doesn't end at the state line?

Because the chances that SCOTUS is going to overturn same-sex marriage bans in 42 states is slim-to-none, and if they rule against us, then we lose marriage in California AGAIN. Not only that, but with SCOTUS ruling against us, it's going to be even more difficult to convince state Supreme Courts to overturn marriage bans. A bad ruling at SCOTUS, depending on the reasoning, could even hurt efforts to overturn the adoption bans in Florida and Arkansas.

If Walker's ruling isn't appealed, it stays good law, not binding on state courts but certainly a persuasive argument. Prop 8 stays dead while we continue to press the issue in other states. GLAD's DOMA challenge, Gill v. OPM will get to SCOTUS and their ruling on that issue will give us an idea as to whether we even have a shot at getting the whole enchilada. If we do, another Perry-like case can be filed in Oregon, Nevada or any number of other states with marriage ban amendments. If we don't, we can keep pushing the state-by-state strategy until we get the critical mass needed to get SCOTUS to act.

IMNSHO. Sorry if that was strident. Just my $.02.

If we don't believe the case for equality is strong enough to stand up in the Constitution's court, why are we even trying? We're going to put everything we have into this case. Our movement constantly waits and waits to make a move on everything. But the perfect window is never going to be open. There will always be challenges. In 10 years we'll have two or three different Justices. Who knows who will have appointed them. Who knows who they will have replaced.

This is not a weak case. This is not a weak decision. Public opinion is even migrating to our side. We just can't keep waiting for equality to be bestowed upon us by a benevolent majority. We are going to have to put in the work ourselves if we are to get it. We're going to have to demand it, and do everything in our power to get it. What we have in California, pending a Supreme Court decision, is no change. The stay maintains the status quo. No marriages. Maybe we can get marriages back for California by stopping here, but what does that do for Alabama? What does that do for Nebraska? Or Arkansas.

I am scared as hell about our Justices, but I know we've got to press forward now. We've got to push hard. Its our duty as American citizens to confront this head on by any means necessary and not cower in constant fear of the hypothetical.

"If we don't believe the case for equality is strong enough to stand up in the Constitution's court, why are we even trying?"

Funny thing, that. We didn't try to bring this case. That is, the organized GLBT legal community didn't. In fact they actively lobbied for the case to be withdrawn. It was a private couple that brought the case, and enlisted Boies and Olson. A new organization was formed to support the effort.

But that's neither here nor there. The strength of a case isn't always the deciding factor. In a case like this, where there are so much politics and phobia, the merits will likely take a back seat to those other factors. Being strategic is necessary. The history of the Supreme Court is strewn with cases that were wrongly decided on the merits.

Phil, don't take this the wrong way, but if you think that the legal arm of our movement "constantly waits and waits," you haven't been paying attention. The LGBT legal orgs have won same-sex marriage in every state where it's been won in court - including California - and haven't shied away from states that weren't a slam dunk. We know this because they've lost in New York, Washington, Maryland and others (though some, like New Jersey, were more of a draw). They're continuing to push through the courts, both through the federal challenge to DOMA that GLAD has won in district court and lawsuits in New Jersey, Hawaii and Montana. Not to mention the lawsuits for partner benefits in Alaska and Arizona, challenges to adoption bans in Arkansas and Florida and scores of others.

I agree with you 100% that we have to put the work in to win our rights. That's why I don't think this lawsuit should go to SCOTUS. It's an extremely risky attempt to get a shortcut to overturn laws in 42 states plus DOMA, and failing there will set EVERYONE back. The history of civil rights has always been that you work state-by-state until a majority of states are on the side of justice, then go to SCOTUS to get the stragglers in line. That's how it worked with segregation, interracial marriage and sodomy laws, all of which SCOTUS didn't weigh in on until they only had to overturn laws in a minority of states. Olson and Boies have done a great job and Walker has written an amazing opinion, but if SCOTUS steps in and overturns the laws of 42 states it will be similar to Roe v. Wade in scope, a case that Ruth Ginsburg has characterized as coming too soon.

I'm not even saying that I don't think that a case like Perry should absolutely be off the table. It just seems like common sense to me that if you're going to go to the Supreme Court with the question of marriage for the first time, you want it to be a smaller, incremental ask - like Gill - rather than the whole enchilada your first time up. If we win Gill and the reasoning suggests we could win a case like Perry, then hell yes! But why gamble everything right this second on a total unknown when we'll know very soon whether or not it's a decent bet? It seems like a crazy risk to me.

Finally, the stay is temporary. If the case gets dismissed for lack of standing, the stay goes away and people can get married in California. We don't have to go to SCOTUS to get that.

Was Gill v. OPM even appealed? To my knowledge, it hasn't been and is only valid in Massachusetts.

It hasn't been appealed yet, but the deadline hasn't passed. I think I'll drop dead with shock if the Obama administration declines to appeal Gill. And I doubt I'll be the only one.

"If we want a victory, why not a victory that doesn't end at the state line?"

Because we don't a vote. Obviously if the choice was ours, we would want that. But the Court doesn't care about what we want.

I kind of expected this. The caution may prove to make a sounder appeal in the long run- but it's so FRUSTRATING....

james riedy | August 16, 2010 10:36 PM

How eloquent was Pres. Obama when commenting about the equal rights of Muslims. How silent he has been about the equal rights of the LGBT community.

That's because he doesn't believe in the equal rights of gays and lesbians. You cannot say "I believe in equal rights except for...", and truly believe in equality, because the "but" puts the lie to what the word equality means.

If we want a President who believes in equality, we'll have to replace the one we have.

The way I figure it, after the Obama Presidency we're going to have to live through another GOP presidency. So if Obama is not reelected, our first chance at a equality-minded president is likely 2016 or 2020. If he is reelected, push that out to 2020 or 2024.

Renee Thomas | August 17, 2010 1:40 AM

This is a black man who on some level owes his very existence to Loving v. Virginia and yet he is seemingly comfortable with not only that irony but the irony of arguing for separate but equal rights for LGBT citizens.

Fierce Advocate my ass . . . by all accounts to date a garden variety hypocrite

Well done Mr. President, well done.

All the analysis and strategic thought aside, it was a huge disappointment to me (and I'm not from CA). It feels like a game of "tease," and I don't like it. And while Judge Walker's opinion should feel safe wtih the SCOTUS, we currently have too many justices there who are mindless idealogues. It scares me.

People who want this to go the US Supreme Court here are shockingly naive about the likelihood that it will uphold Walker's Perry decision. In Lawrence v Texas, Kennedy all but said that his sodomy decision was not an endorsement of a constitutional right to marriage. He seemed rather offended by Scalia's taunting that his opinion in Lawrence would be used to declare a constitutional right to same-sex marriage. Kennedy emphasized that a right to not be arrested for private consensual sodomy is entirely different than granting special privileges and status (marriage) to same-sex activity/relationships.
I and many other experts strongly doubt Kennedy would declare a constitutional right to same-sex marriage. He might want to dodge the issue altogether, but he probably does not want to find it to be constitutional right. The 9th Circuit is keenly aware that Perry would not be upheld by the Supreme Court and probably granted the stay to avoid the Supreme Court from granting an emergency stay. The Supreme Court probably would have been in a foul mood if the 9th Circuit did not grant a stay and it had to grant an emergency stay.

We will be lucky to escape Supreme Court review because it would set us back many decades, perhaps worse than Bowers v Hardwick.

"And while Judge Walker's opinion should feel safe wtih the SCOTUS, we currently have too many justices there who are mindless idealogues. It scares me."

Indeed. We're unlikely to win at SCOTUS in any case, I think people are too optimistic about the two most recent court appointees, counting them as givens, when they were appointed by a man who explicitly does not support marriage equality.

As a prop 8 backer I am curious on your take concerning Walker's classifying of personal morals based on religion as being irrational.

Religion is constitutionally immutable under the 1st Amendment; whereas same sex attraction is not, yet this one judge declared the immutability of religion to be irrational; while simultaneously declaring immutability for same sex practitioners per the 14th Amendment in opposition to precedence that clearly refutes this assertion.

Randy my religion believes that what God has joined together no man should put asunder. If God joins Adam and Steve no pulpit jockey should object. My religion also believes that any woman found not to be a virgin the night of her marriage should be stoned to death. Would you allow me to codify that into the civil laws of the U.S.A. (deuteronomy 22:21)?

Renee Thomas | August 17, 2010 5:42 PM

No Randy (an epically loud No in fact)

Judge Walker came to the reasonable conclusion that objections to same-sex marriage have been and continue to be being motivated by nothing more complicated nor sophisticated than irrational, anti-gay animus . . . period. Your position to observe the tenants of your faith as you see fit is uncontested but for this one immutable (and unarguable) point.

You don't get a vote on my civil rights.

Preach whatever you want from within your communities of faith but understand this - Constitutional law and binding legal president has established that the right to marry is a fundamental right not subject to a vote of the ignorant rabble.

It was swell to hear from you Randy but next time you venture forth out into a pluralistic public square, make sure you eat your wheaties . . . it’s a tough neighborhood filled with folks who will not hesitate to defend their rights.

Randy E King | August 19, 2010 12:06 AM

So I take it is safe to say that you did not read the 2006 8th Circuit Court of Appeals ruling on Nebraska?

The 8th Circuit opined that:

1) There is no constitutional right to same sex marriage.

2) Procreation is a rationale basis of opinion

The plaintiffs soon appealed to SCOTUS; which refused to hear the case because it did not present a constitutional question - ie there is no constitutional right to same sex marriage.

Your refusal to acknowledge the irrefutable 1st Amendment protection of my immutable faith while simultaneously insisting on misinterpreting precedence only proves how indefensible your position is on this topic.

In Loving V. Virginia SCOTUS opined that marriage is a fundamental right THAT OUR VERY EXISTANCE IS DEPENDANT UPON IT,

No person in their right mind could ever conclude that our very existence was dependent upon same sex partners rubbing their reproductive organs against each other.

As someone who was not planning on getting married in California any time soon, all I can say is that there doesn't seem to be any good reason to issue this stay. They should have issued a stay on Prop 8 itself before the trial started and continued with same-sex marriages until all the appeals were heard.

So true, Alex, and I believe they tried to get the California Supreme Court to issue a stay while they contested the constitutionality of the question on the ballot. Of course, that didn't go well--and we had the "Day of Decision," the rise of Join the Impact, Courage Campaign, EAA, NEM, GetEQUAL, HERO, QueerRising, and all sorts of good stuff!