The Ninth Circuit decided yesterday to extend last Thursday’s stay on Judge Walker’s Proposition 8 ruling until at least Dec. 6th. This is bad news for those who have time and time again had their marriage hopes delayed repeatedly, but there is a ray of light at the end of this tunnel.
From the decision:
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.
What this means basically is the appeals court has received the case and on their own accord, pushed it forward for an early hearing. (Sua sponte is legalese for an applied action – expediting the case – made without request from anyone else involved.)
The most interesting point we’ll be paying attention to as these dates approach will be the defenses arguments over standing. When Perry v. Schwarzenegger was originally brought, neither Governor Schwarzenegger nor Atty.Gen. Jerry Brown were willing to defend the Proposition. Judge Walker allowed outside groups to intervene on behalf of the defense.
Because these outside groups were able to show they had a legitimate and ascertainable interest in the case they were allowed to act as intervenor-defendants. That may not be enough to allow them to follow the case all the way to the Ninth Circuit. For that they need to prove they have standing.
In other words for this appeal to go forward past Dec. 6th, the anti-gay supporters of Prop. 8 need to prove that (A) they have suffered, or will suffer from an invasion of a legally protected interest (ie marriage) (B) that invasion is causally connected to the overturning of Prop. 8 and (C) an appeal in their favor will actually help overcome that invasion.
Considering the sheer-inanity of the idea that gay marriage will somehow “harm” other peoples lives, and further considering the explicit way this line of thought was deconstructed and demolished in Walker’s decision overturning Prop. 8, the likelihood of a harm being found is bordering on nill.
What happens if the defendants are found to not have standing is legalese beyond my paygrade, but it could mean and immediate end to the stay and the full legalization of SSM. (I’ve also heard it might mean that even the first trial is vacated, as the defendants lacked the right to play defense and everything goes back to square one. Fingers crossed.)