Thursday, August 12, 2010

Stay is denied, but....

The latest news is that the ban on same-sex marriage is lifted but not until August 18th to allow for appeal. From the Mercury News:
A San Francisco federal judge today ruled that same-sex marriages should resume immediately in California, but put his decision on hold to give an appeals court an opportunity to consider whether to allow the marriage licenses to be issued while the legal challenge to the state's gay marriage ban proceeds.

Chief U.S. District Judge Vaughn Walker, who a week ago struck down Proposition 8 as unconstitutional, found there is no longer reason to bar same-sex couples from the equal right to wed, particularly in view of the fact that Gov. Arnold Schwarzenegger and Attorney General Jerry Brown -- the state's top officials -- agree that the marriages should be legal right away.

The judge put his order on hold until Aug. 18 for the appeals court to review the matter. Otherwise, he ordered the state to cease enforcing its ban on same-sex marriage.

6 comments:

dr.primrose said...

According to the L.A. Times, on Monday afternoon, the Ninth Circuit imposed a stay in the Prop. 8 case, while the court considers the merits but imposed a expedited schedule so the case will be heard in December -- No gay marriages in California before December, court rules.

IT said...

So this means they have standing, yes?

David |Dah • veed| said...

So this means they have standing, yes?

No, I believe that this is to allow for the filing of briefs to show that they have standing. Then there will be the hearing in DEC regarding that matter.

It is just getting started IT. The fat lady has not even gargle with salt water as yet.

dr.primrose said...

IT, the 9th Circuit order requires the Prop. 8 proponents to address the standing issue - "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."

The L.A. Times story today (Federal panel puts same-sex marriage on hold as appeal of Prop. 8 ruling goes forward) cites a law professor's opinion that the stay is in fact GOOD in the long-term interests of the proponents of marriage for same-sex marriage:

****

Loyola Law School professor Richard Hasen said Monday's order was strategically advantageous for supporters of same-sex marriage, no matter how disappointed many couples may be. 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."

Hasen said the hold "takes the heat" off Kennedy and takes the case "off the front burner for a while."

dr.primrose said...

Sorry, that should have been "marriage for same-sex couples," not "marriage for same-sex marriage."

James said...

Good points, Dr. Primrose. My take from the Walker finding was that the Yet folk were praying the 9th wouldn't give them the time of day. They wanted it to head to SCOUSA as quickly as possible.

The more time between the Walker finding and the supreme court makes for a much calmer supreme court. In my opinion which, if turned into cash, wouldn't buy a piece of bubble gum.

David, I don't think the fat-lady has even been born yet.