Thursday, August 12, 2010

BREAKING: Judge Walker LIFTS Stay on Prop H8 Ruling... For August 18

Now we have some more details of what's to come...

Because proponents fail to
satisfy any of the factors necessary to warrant a stay, the court
denies a stay except for a limited time solely in order to permit
the court of appeals to consider the issue in an orderly manner. [...]

Proponents replied that they have an interest in defending Proposition 8 but failed to articulate even one specific harm they may suffer as a consequence of the injunction.

So far, good news... Except that marriages are still on hold until August 18. Now the case heads to the Ninth Circuit Court of Appeals, where Prop H8 proponents have already filed a challenge asking the Ninth to overturn Judge Walker's ruling (both in reinstating the stay and Prop H8 itself). Judge Walker essentially put marriage equality on hold for another week to give Prop H8 proponents time to file exactly this challenge.

Here's some more legal analysis on where we stand (via DKos):

The important part of Judge Walker's order -- even beyond allowing marriages to resume within the week so long as the Ninth Circuit doesn't intervene -- is what it portends regarding the standing issue on anyappeal of his opinion.
The court provided proponents with an opportunity to identify a harm they would face “if an injunction against Proposition 8 is issued.”  Proponents replied that they have an interest in defending Proposition 8 but failed to articulate even one specific harm they may suffer as a consequence of the injunction….
If [] no state defendant appeals, proponents will need to show standing in the court of appeals. See Arizonans for Official English, 520 US at 67. Proponents’ intervention in the district court does not provide them with standing to appeal. Diamond, 476 US at 68 (holding that “Diamond’s status as an intervenor below, whether permissive or as of right, does not confer standing to keep the case alive in the absence of the State on this appeal”); see also Associated Builders & Contractors v Perry, 16 F3d 688, 690 (6th Cir 1994) (“The standing requirement * * * may bar an appeal even though a litigant had standing before the district court.”). The Supreme Court has expressed “grave doubts” whether initiative proponents have independent Article III standing to defend the constitutionality of the initiative. Arizonans for Official English, 520 US at 67.
Nor do the Prop 8 proponents suffer any harms in the interim, because none of them "seek to wed a same-sex spouse," and "the court considers only whether the party seeking a stay faces harm, yet proponents do not identify a harm to them that would result from denial of their motion to stay."  Finally, that neither Governor Schwarzenegger nor Attorney General Brown (the actual defendants) requested a stay weighed heavily on the Court.

So no marriages until next Wednesday at the earliest, pending ruling from the Ninth Circuit on whether Judge Walker's ruling should be stayed as the case heads to their court... And of course, we'll have to see how soon the US Supreme Court jumps into the case (again).

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