In a totally expected move, the proponents of Prop 8 filed their Emergency Motion for Stay Pending Appeal.
The Local Rules require that they make a statement certifying that “to avoid irreparable harm relief is needed in less than 21-days.” Here's what they argue:
It is thus imperative that a stay pending appeal be entered on or before August 18, 2010 at 5 p.m. to avoid the confusion and irreparable injury that would flow from the creation of a class of purported same-sex marriages. See, e.g., Advisory: If Judge Walker Says It’s OK to Get Married, GLTNN.com, Aug. 11, 2010, available at http://gltnewsnow.com/2010/08/11/advisory-if-judge-walker-says-it’s-ok-to-get-married/ (reporting that West Hollywood stands ready to marry gay couples “[a]s soon as the federal judge lifts the stay,” and that Los Angeles County “is prepared to take immediate action to implement the court’s orders if the stay is lifted”) quotation marks omitted).
(Hey, at least we know they're reading our friends over at gltnewsnow.com)
As for their arguments on the merits of the stay, there does not seem to be any new arguments that Judge Walker has not already rejected. I'm running out the door but will try to have some analysis tomorrow.
This Emergency Motion will be referred to the lead judge of the Motions Panel. If the lead judge is unavailable, the Emergency Motion is referred to the second judge and then the third judge of the Motions Panel. The judge to whom it is referred may either grant temporary relief or convene the Motions Panel (usually by telephone) to decide the motion. My guess is that in a case as newsworthy as this, the lead judge would prefer to convene the entire panel rather than make the decision himself. In any event, there could be a decision on the Emergency Motion within hours after the motion is filed, but it's more likely that it will take a day or two for the Judge(s) to rule.
I'll let you know if i get word of any ruling,
Disclosure: I practice law and sometimes have cases before the Ninth Circuit, including cases involving DePuy and Johnson & Johnson's recent hip replacement recall.
Interveners arguments on
1-the merits seem to be a rehash of the trial
2-their standing seems to be a bit of a mishmash
3-authorities is telling; they cite Obama three times on the validity of same sex marriage
Most galling to me of all is this argument that marriage has always been opposite sex marriage. Of course they are referring to official, recorded marriages, not common law marriage. It is a logical fallacy to argue that lack of evidence of a fact demonstrates absence of the fact. Just because prejudiced modern period church and state officials have no records of same sex marriage is not evidence of the absence of same sex marriages, which we know took place in the ancient period.
It is analagous to marriages among southern slaves before the Civil War. Most often these marraiges were not recorded out of intitutionalized prejudice, but to claim that they did not occur is ludicrous. This is also true of same sex marriages. Moreover, marriages in general were not always recorded by the church before, I believe the institution of sacramental marraige in the, IIRC, 12th or 13th century. Civil marriages were often not recorded before the civil war simply becasue 95% of the population lived on farms in rural areas where there was often no civil infrastructure to provide licenses and so forth. The fact of the matter is that official records are too scant to fully describe the nature of marraiage during all history.
OK, I’m pissed off and I shouldn’t comment before I’ve had soemthing to eat.
They put someone on task to write this appeal at the beginning, and that person didn’t interact with anyone until this appeal was filed. I mean – 73 pages that goes all over the place and citing so many things that weren’t even brought up in the trial court.