The Ninth Circuit just issued the following order:
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.
The previously established briefing schedule is vacated. The opening brief is now due September 17, 2010. The answering brief is due October 18, 2010. The reply brief is due November 1, 2010. 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. See Arizonans For Official English v. Arizona, 520 U.S. 43, 66 (1997).
Three things:
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. It's interesting that the panel does not at all discuss the reasons for their decision on the motion to stay. That's because if they went through the factors, there's no way they could rationalize the stay. They themselves raise the issue of standing and express an inclination that the case should be dismissed on that basis. How, then, could they possibly determine that the Appellants have a “high likelihood of success on the merits”? And how can they show that the Appellants will suffer any harm if loving couples in California are allowed to marry each other?
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.
UPDATE (8/17): The Ninth Circuit issued the same Scheduling Order in Imperial County's appeal which challenges Judge Walker's denial of its motion to intervene.
And yes, the language on standing is very interesting. It also makes the Attorney General’s race this November all the more important.
I just can’t get inside the heads of apathetic voters, especially right-wing apathetic voters.
Will they be “too busy to vote” because the courts are still deliberating, or will they be “damned sure” to vote because the courts are still deliberating?
I’m not hugely experienced in appellate practice, but I have to admit the dichotomy seems odd to me, particularly of a decision that is sure to see SCOTUS review – you would think they would want to dot their I’s and cross their T’s. They could have, if they wanted to, cited precedent that would provide at least a credible basis for “likelihood of succeeding on the merits” (I’d of course disagree) but to cite nothing at all? Seems to be inviting SCOTUS to overturn them, or to at least to refer it back down for a more reasoned decision, if plaintiffs-apellees choose to. Is this appealable to SCOTUS? Any word on if plaintiffs will appeal?
Isn’t this the obvious, easy way out for the courts, given Walker’s decision? This way they don’t have to deal with the fact that that decision laid out facts which makes it pretty much impossible not to rule same-sex marriage protected by the (U.S.) constitution.
Wouldn’t we rather see them grant standing and force the courts to finally step in and reject legally sanctioned prejudice?
because no one can show harm, that the whole argument that it’s okay to abridge rights to prevent harm to some nebulous unnamed people sort of falls flat.
Your discussion of the legal issues here has been excellent. I’m looking forward to comments on other cases too. Finally, an explanation of the difference between a party and an intervener!
Standing has been used over the last few decades to limit access to the courthouse by plaintiffs. Now, the same strictures should apply to these appellants.
This is an example of procedure and merits of the case converging. There is lack of a concrete harm.
I don’t like it, but I can understand why the stay was granted — it is usually the case when an appeal is accepted. While waiting sucks, it would be worse to have the marriages annulled if the appeals court overturns the decision.
Any good lawyer knows that judges have official written rationales for their decisions as well as rationales that are unwritten. Richard Posner and some others have contributed a large body of well reasoned literature on these unwritten rationales and the underlying motivations for them. I think the 9th Circuit’s judges may be inclined to uphold Judge Walker’s ruling. However, they may know that the Supreme court is a DANGEROUS place for the Prop 8 case to be right now. By issuing the stay, they will keep from giving the Supreme Court any good reason to intervene in the Prop 8 case right away.
Disregarding the attorneys’ personalities in the two gay rights cases careening toward the Supremes (the Massachusetts case challenging DOMA and the California Prop 8 case), I think the case challenging DOMA has a much BETTER chance of surviving the Supreme court’s conservative grinder than the Prop 8 case.
The DOMA case challenges the Federal Government’s authority (via the US Congress) TO MAKE GENDER AND SEXUAL-ORIENTATION DISTINCTIONS in bestowing of FEDERAL benefits under a FEDERAL LAW). In the DOMA case, the US Constitution more clearly gives the Federal Courts SUPREMACY over a law that the US CONGRESS had no authority to pass (than it gives the Federal Courts to intervene in the STATE MATTERS involved with Prop 8).
The Prop 8 case challenges the Federal Government’s authority (via the US District Court) TO PREVENT A STATE FROM DOING SOMETHING. Since states retain the right to do anything they choose EXCEPT FOR SPECIFIC ACTS that the US CONSTITUTION PREVENTS, it is A LOT EASIER for Scalia and his “Originalist”/”Textualist” ilk to make mischief in arguing that the Founders didn’t give the Feds any jurisdiction to force California’s government to issue marriage licenses to gays. They are likely to protect gays’ right to “marry” in gay-friendly churches and to use the WORD “marriage” (under freedom of religion and speech grounds), but they may not force California to issue marriage licenses to gay couples.