By Maura Dolan, Los Angeles Times
August 12, 2010|12:44 p.m.
Reporting from San Francisco —
A federal judge Thursday refused to permanently stay his ruling overturning Proposition 8 but extended a temporary hold to give supporters time to appeal the historic ruling. U.S. District Judge Vaughn R. Walker, who overturned the measure on Aug. 4, agreed to give its sponsors until Aug. 18 to appeal his ruling to the U.S. 9th Circuit Court of Appeals. No new marriages can take place until then.
Walker's decision came after supporters of the same-sex marriage ban warned that they would take their case to the U.S. Supreme Court if necessary to ensure that his ruling did not take effect....
Well, they're going to have to take it all the way, I should think. Or, if not them, then the plaintiffs will appeal the extension of the stay itself. Either way, the appeal of the stay itself will probably go all the way up to the Supreme Court. Depending on what's been done, the Court will then either decline to remove the stay or put it back in place -- I cannot see this Court allowing marriages to proceed while the case itself is still in the appeals process. Shouldt this Court will overturn Walker's decision -- which it might not -- then all the marriages conducted in the interim would likely be ruled invalid, as they should never have been conducted in the first place. Of course, unless the Court says as much in any resulting decision, that would take another court case, and that would be exceptionally nasty.
I have to admit, I am really fascinated to see what the Ninth does in the next week. It really would be astonishing -- and, as a commenter has said, a strong signal of where they were headed with a final decision -- if the Ninth does not continue the hold indefinitely. After all, it's likely to be six months to a year before the appeals court hears the case itself. Just imagine how many marriages could be contracted in the meantime. But there won't be any marriages conducted on or about August 18 anyway; even if the appeals court itself declines to issue an indefinite hold, I should think they would issue another temporary hold in order to allow the Supreme Court to decide whether or not to issue its own hold.
It's also going to be interesting to see what the appeal itself says. I wonder if it's going to be possible for the defendants to bring up the argument that Walker, as a man apparently in a long-term relationship with another man, should have recused himself; after all, in theory at least, the ruling could affect him directly. To the best of my knowledge, that argument was never made during the case itself, and if they didn't, as I understand it, they can't bring that issue up in appeal.
Possibly something of a side note: reportedly, MSNBC has said that there may be something about the case itself that means that the defendants other than the state of California -- which refused to defend the law and would have lost in a walkover had the other defendants not intervened -- lack the standing to appeal the hold. Unfortunately, I can't find anything that indicates why they would lack standing; it doesn't make a lot of sense, if they were allowed to attach themselves to the case as defendants, that they wouldn't be allowed to appeal their loss.
EDIT: Ah, here it is. Apparently, the other defendants have partially shot themselves in the foot with their argument for the hold. They're saying that the state will suffer irreparable harm if the hold is not extended while the decision itself is on appeal; the problem is that the state itself has said that it felt the law was indefensible in the first place, and that marriages should be allowed to proceed. Because they don't have the agreement of the state, they may not have standing to appeal in the first place. One assumes, of course, that they would appeal their lack of standing to the Supreme Court. One way or another, this case is getting all the way up there. Oddly enough, I would put the defendants' odds of winning that appeal as slightly worse than even; if they lose, the case itself never gets to the Supreme Court.
This would make for a very interesting situation. (Take the following analysis with a full mine of salt; IANAL and all that.) If the other defendants lack standing, that would mean that the only party with standing to appeal, the state of California, doesn't want to. That would mean the decision would take effect ... but only in California, because it could never get a hearing in the court of appeals on its merits, and thus couldn't go all the way to the Supreme Court. An appeal that went all the way to the Supreme Court could federalize any resulting decision; depending on the wording of the Court's decision, it could work like Lawrence v. Texas did for sodomy laws, striking down every state's ban on same-sex marriage, whether it was simply a DOMA-like law, or an actual state constitutional amendment, or if the decision was reversed, the Court could preserve them all. It does seem like that would produce a very peculiar situation, however; California would be prohibited on federal constitutional grounds from prohibiting a form of marriage banned by 47 other states. (New Mexico and New York are in the anomalous position of neither having laws banning same sex marriage, nor allowing it to proceed, because their attorneys general have stated that their constitutions require the legislature to make some affirmative or negative action regarding the process, and both state legislatures have declined to do either.)
Anyway, the video:Posted by iain at August 12, 2010 03:17 PM