Judge Puts Gay Marriages in CA on Hold

A three judge panel of the 9th Circuit Court of Appeals yesterday put gay marriages on ice pending an appeal of the trial court's decision overturning Prop 8.

The panel's decision gave no explanation for staying Walker's order directing the state to once again allow same-sex couples to marry.

The panel said the court would hear the Proposition 8 challenge on an expedited basis and hold arguments the week of Dec. 6. Another panel of three judges is expected to rule on the appeal.

Some proponents of gay marriage think stay order may actually help in the long run. [More...]

If the panel had refused to place a hold on Walker's ruling, the supporters of Proposition 8 were prepared to seek a stay from the Supreme Court. The court is believed to be divided on the question of gay marriage, with Justice Anthony Kennedy considered a swing vote. A vote on a hold might have pushed the justices into taking an early position on the question.

"I think there are strategic reasons why even the most ardent supporter of gay marriage could opt for a stay," said Hasen, an expert on federal court stays. "The concern is that rushing things to the Supreme Court could lead to an adverse result [for supporters of gay marriage.] If this case takes another year to get to the U.S. Supreme Court, there could be more states that adopt same-sex marriage and more judicial opinions that reach that conclusion."

The Court gave no reason for its decision, but:

But it ordered Proposition 8 sponsors to address in their opening brief due Sept. 17 whether they even have the legal right to try to have the trial judge's ruling overturned. Both Brown and California Gov. Arnold Schwarzenegger, the original defendants in the case, have said they support same-sex marriage and refused to defend Proposition 8 in court.

You can read the order here.

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  • Display: Sort:
    I hope this goes to the SCOTUS (none / 0) (#1)
    by mexboy on Tue Aug 17, 2010 at 05:26:03 AM EST
    The defense's caste was pitiful. Only two witnesses for the pro 8 testified and they ended up agreeing with the plaintiffs. They simply could not offer any evidence that the state should treat gay people unequal under the law.

    Judge Walker's decision is very detailed and sound in my non-lawyer opinion.

    The time is right to treat everyone equal under the law.

    this right winger (5.00 / 1) (#3)
    by Capt Howdy on Tue Aug 17, 2010 at 09:06:03 AM EST
    agrees with you

    Same-sex marriage opponents are no doubt failing in part because of their own inability to express a compelling rationale for their position, one that starts with the existing public understanding of what marriage is and should be and then argues that such an understanding is best served by keeping out same-sex couples. But in the long term, I suspect that the fight for equal marriage rights will succeed because millions of Americans will struggle with their intuitive opposition and decide, as I did, that they can not justify it to themselves.

    Your post gives the heart hope. (none / 0) (#9)
    by mexboy on Tue Aug 17, 2010 at 02:56:53 PM EST
    questions for a lawyers (none / 0) (#2)
    by TimNCGuy on Tue Aug 17, 2010 at 08:38:57 AM EST
    All I read last week reading up to this stay decision was that there are several criteria used in determining whether to grant a stay.  Two of those criteria are:

    You must show that you have a good chance of winning the appeal.  How can you find a good chance of prevailing when you haven't even shown a good chance of getting standing to appeal?

    You must show that you would be harmed by lifting the stay.  And, the harm must be to the person requesting the stay.  They cannot claim any possible limbo a same-sex couple might choose to put themselves into by marrying during the appeal process as harm to the pro 8 group.  They can't claim harm to the state as the state already said they wanted the stay lifted.

    Judge Walker was NOT able to find that either of these criteria were met or any other criteria.

    I'm not questioning whether the stay is good or bad in this instance.  

    I'm just questioning how the 9th justified it.  Does a circuit court have different requirements for issuing a stay than those that are required of a district court?

    Were all the data published prior to this stay about what was REQUIRED to issue a stay just a bunch of BS?

    Is a circuit court allowed to issue a stay that was shown to be without merit at the district level without publishing their justification for doing so?

    My sense is that the stay is (none / 0) (#4)
    by KeysDan on Tue Aug 17, 2010 at 10:28:39 AM EST
    cloaked more in politics than jurisprudence.  The stay places the timing after the fall elections and offers time for the distillation of emotions given the fact that the court ruling jettisons a referendum--as clearly unconstitutional as it is.

    However, the timing after the elections will bring a new governor and attorney general which may impact the present strong argument on standing wherein the present governor (Schwarzenegger) and attorney general (Brown) are not defending the proposition, leaving non-state actors to defend a law that it is not charged with enforcing. If Democrats Jerry Brown and Kamala Harris are elected to these respective offices, it will not change the political landscape.  An additional drawback is the demagogic fire the issue will continue to draw during the campaign.

    but, even ifthe justices (none / 0) (#5)
    by TimNCGuy on Tue Aug 17, 2010 at 11:13:46 AM EST
    want to issue the stay for "political" reasons, aren't they still required to come up with some sort of legal reasoning to justify it?

    The Ninth Circuit's three-judge panel (none / 0) (#6)
    by KeysDan on Tue Aug 17, 2010 at 11:37:27 AM EST
    was cryptic, motion to stay granted. Opening brief, Sept 17, reply brief by Nov l, and appeal scheduled for week of Dec 6.  An explanation was sought as to why proponents have standing. Apparently, they saw no need to do more at this point.