9th Circuit Keeps Stay On Prop 8 Ruling: No Marriages Just Yet

The Ninth Circuit Court of Appeals has granted ProtectMarriage.com’s emergency request for a stay in Judge Vaughn Walker’s Prop 8 ruling, which means the possibility of same-sex marriage resuming on Wednesday, when Walker ordered a temporary stay lifted, is dead. The Court did, however, place the case on its “expedited” list, and will (theoretically) more quickly decide whether to rule the defendant-intervenors have proper standing to appeal.

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  • L.

    I guess there were maybe legal process reasons that meant they had to do that, but I truly hope they’ll rule against DefendInequality.com’s standing very expeditiously indeed.

  • Jon B

    @L.: You only want them to rule against DefendMarriage.com’s standing if you don’t want it to go to the SCOTUS… If you think we’ll win there, you should hope they do have standing.

    It makes sense to stay the decision until the appeals can be sorted out. If not, we could easily end up with another odd window of marriage rights, with shaky legal ground to stand on, and more court battles.

    We got a great opinion from Judge Vaughn Walker. Have faith we will win in the end.


    The Ninth Circuit Court of Appeals is known as the most liberal in the entire judicial system. Am hoping this is not an indication of things to come…………*sigh*

    And isn’t it curious “Protect Marriage.com” is so named. All we are trying to do is allow our community to join together in marriage. One could even say we are “protecting marriage”…..

  • Steve

    I live in Florida. Florida has a no-gay-marriage amendment, and it will take 60% vote to repeal that amendment. Because of employment, licensing, and property considerations, I and my partner of 20 years cannot just pack up and move to another state. We need to get the law changed in Florida. The only way we will ever get marriage equality in Florida is when the SCOTUS decides that that amendment is unconstitutional.

    We think the Perry case is by far the best shot we will have, for a good number of years to come. The “proponents” put on such a poor showing at trial, that they have little or nothing upon which to base their appeals arguments.

    We want the appeal to go forward, so that gay couples in other states can get the benefit of a higher-court ruling. Ideally, they would allow marriages to proceed in CA while that happens.

  • Drake

    Jon B- in law, you quit when you have won, never try kicking it upstairs. Things change. After Jan 1, California will have a new governor and a new attorney general. Maybe they will view things differently, and fight Prop 8. A win in December on the standing issue would be great.

    The Prop 8 folks will appeal their lack of standing to the US Supreme Court, but then that would be it , if they don’t win there on standing. We should be satisfied with a win in California, if that’s what happens.

  • Gary B.

    Sorry, but this fucking SUCKS!

  • Shade

    Very sad, the more marriages we have in Cali the better we can make our case.

  • L.

    @Jon B: Ah yes, I see. I guess some part of me still fears that the SCOTUS will uphold Prop. 8…

    And, as well, a SCOTUS win may well be the only hope for people in other states, like Steve in Florida, to finally get equal rights.

    So: let’s keep the hope and the good fight up!

  • B

    No. 3 · PLAYS WELL WITH OTHERS wrote, “The Ninth Circuit Court of Appeals is known as the most liberal in the entire judicial system. Am hoping this is not an indication of things to come…………*sigh*”

    All it indicates is that they want to think about it and are maintaining the status quo until they do. If they rule that “Protect Marriage” has no standing, you want a compelling
    legal argument to justify that, as the standing issue would almost certainly be appealed to the Supreme Court.

    Don’t get too excited – it’s going to sound like “good news followed by bad news” and vice versa for some time, which is why (in a different thread) I suggested holding off on declaring Judge Walker’s ruling a “major victory” until we know the final outcome.

  • Paschal

    @Drake: What about all the gay couples in Alabama, Texas, etc.? I want this to go to the Supreme Court and win. There’s a real risk that SCOTUS will rule against marriage equality but David Boies and Ted Olson have a strong cae and there is also the real possibility that they’ll win.

  • TomEM

    I am not impressed with the Ninth.

    Okay, my degree is not in Law, but it seems that determining whether those people have defendant/intervening status would be easier than that…?

  • B

    http://www.politico.com/pdf/PPM156_10-16696.pdf has a copy of the decision (listing the judges who made the ruling). It is quite short, so I’ve copied it below. One point QUEERTY did not mention – they require the appellants (“Yes on Eight” people) to discuss why the appeal should not be dismissed for lack of standing. I.e., if the appellants do not come up with a convincing argument as to why they should be here, they will be kicked out the door.

    The hearing is scheduled for Dec 6 of this year with various briefs due earlier.


    Before: LEAVY, HAWKINS and THOMAS, Circuit Judges.
    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).

  • L.

    (People on a gay website are thumbing *down* posts about equal rights? *sounds of mind boggling*)

  • ron

    Hooray..two turd burglars are not a marriage.

  • TomEM

    @B: Thanks B.

  • kip

    I wouldn’t get too excited about that part of the stay order that requests briefing on the standing issue. That is common for a panel to do in such cases. It doesn’t mean anything one way or the other.

  • B

    No. 16 · kip wrote, “I wouldn’t get too excited about that part of the stay order that requests briefing on the standing issue. That is common for a panel to do in such cases.”

    The interesting thing is the particular precedent the court cited, which was the same one the plaintiffs mentioned, as I recall: it wasn’t a general request but one rather specific to the defendants’ situation.

  • Michael

    Unless one side caves, this will definitely wind up in the Supreme Court. The “stay” in essence means, the appellate court wants to hear the issue. The “expedited status” only means the case will be calendared earlier, probably sometime this November. Realistically, these proceedings will continue until at least the Fall of 2011, to be followed with an appeal to the Supreme Court. A final decision would be rendered sometime in the Spring of 2012, at best. Don’t shoot the messenger – this is simply the way our judicial system works.

  • Sceth

    SCOTUS and the Ninth will be expected to take note of Walker’s factfinding if Perry ascends. If it doesn’t, then some other case will come around, and the district court will probably not bother with any investigation, and the binding pieces of information here will be lost. I hope the Ninth says that they have standing and Boise doesn’t appeal that to the SCOTUS. Because the Supremes are stern with standing, and the Ninth is more lax.

  • Chuck

    So much for liberty and justice for all. How did the three old white male judges decide that the prop 8 people were harmed by gay marriage? Sounds like Nazi war courts to me where they didn’t but ruled anyway.

    I also don’t think getting this to the Supremes anytime soon is a good thing. With all those Shrub judges, unless one of them dies, we’re still screwed.

  • Blaine Ward

    We can’t possibly be surprised about this, can we? They’re just fucking with us.

  • DR

    As I said in another thread, this is smart lawyering. If something doesn’t go our way, then California ends up with a slew of marriages stuck in an even worse legal limbo than when SSM was legal for eighteen months in California; at least there, the SSM orgs had good reason to expect the courts to split the baby and not invalidate 18,000 marriages. In this case, not so much.

    Folks may not like it, but until the case is decided or dropped by the opposing side, this is the right legal decision.

  • Gary B.

    I would love to know, from someone who really knows the law, what ultimately is best for national gay marriage at this point.

    What I’m saying is, if the appeal is denied, obviously it’s great in one respect in that California has legal gay marriage, but does that mean it’s over? Can the Yes on Prop 8 people appeal it to a higher court, and would they, if the appeal was shot down on a lower court? And if it dies in the Ninth Circuit court, does that mean that the chance of this having national ramifications by a Supreme Court decision doesn’t happen? Wouldn’t that ultimately be worse for the possibility of national gay marriage?

    Or, is it better if the Ninth Circuit appeals the decision, therefore having the No on Prop 8 people appealing it to the Supreme Court? Then of course it would have to be overturned for gay marriages to have a chance, which seems like a much harder hill to climb.

    I hope I’m wrong and that even if the appeal gets overthrown that it will still get a national airing by the SCOTUS, but I just don’t know enough about how the law works. Does anyone here genuinely understand how this works and what the possible scenarios could look like?

  • Paschal

    @Gary B.: The ninth circuit, the most liberal in the country , could agree with Judge Walker’s decision. The appeal of Judge Walker’s ruling would be heard before three judges. These judges must find a factual error in Judge Walker’s ruling to overturn it. An further appeal can be made. This appeal would be heard before eleven judges of the ninth circuit. The ninth circuit can decide to refuse this appeal. These judges wouldn’t be limited to simply finding a factual error.

    If the ninth circuit ruled against marriage equality the Supreme Court would very likely refuse to hear the case and let the constitutional challenge end. Only in certain cases does SCOTUS have to hear a case. If the ninth circuit however ruled in favour of marriage eqaulity, which it could very well do, SCOTUS would be unlikely to let marriage eqaulity exist without an appeal to the Supreme Court in one part of the country as a federal constitutional right.

  • Jaroslaw

    #24 Paschal – please explain the second half of your last sentence. I (obviously) don’t understand it since we have full equal marriage in Massachussetts. thanks

    PS – Why did this appeal get heard at all – I thought Protectmarriage had to prove harm? In other words, they have no legal standing. I say this because a friend of mine who understands the law much better than I do says the court hearing the appeal “broke the law” by hearing this appeal when it doesn’t meet the criteria to hear it.

    Thoughts Mr. Paschal? Thanks again.

  • Paschal

    @Jaroslaw: It takes four Supreme Court justices to get a case heard before the Supreme Court. If the ninth circuit ruled in favour of marriage eqaulity, then a federal constitutional right to gay marriage would exist in all of the states in the ninth circuit including Utah, Oregon, Washington, and Nevada. It’s very unlikely that six or more Supreme Court judges would just let this situation continue. SCOTUS would therefore likely hear the appeal.

    The judges haven’t given a reason for granting the stay. They did ask, however, the opponents of marriage equality to give a reason why they have standing. The judges will decide in the future whether or not they have standing at all.

  • J.C

    Thanks paschal. If only we were all as well informed on this very important issue, and the legalities involved as you are. Thank you for taking the time to shed light and clarify! This whole issue has really forced many of us to get more involved in educating ourselves on our court system and legal matters.

  • Paschal

    @Paschal: CORRECTION

    Apparently the judges who will decide whether or not the opponets of marriage equality will not be the panel of judges who stayed Judge Walker’s ruling.

  • Steve

    I like how this was decided just a day or two before the marriages would have resumed. Leave it to our country to do everything at the last minute.

  • Jaroslaw

    #29 Steven – it had to be decided that way, because if the marriages resumed and were found to be “invalid” it would be a much bigger legal problem and disservice to those getting married, I think. Not that they were so worried about the disservice aspect, but still….

  • Gary B.

    @Paschal: Paschal, thank you so much for your very informative information. I find this very encouraging, as much as the decision from this week still stings. Being as I live in Oregon, that could mean that if they didn’t appeal Judge Walker’s decision, gay marriage could become legal here too, and obviously if it suddenly became legal in five states, it makes sense that it would be a huge issue that SCOTUS would have to address.

    Is this information in news reports with the ramificaitons laid out so clearly as you have? I haven’t seen that. Maybe I’m looking in the wrong places…

  • Paschal

    @Gary B.: Judge Walker’s decision would only affect California. If, however, the pro-marriage equality side won in the ninth circuit and the Supreme Court did not hear the case then marriage equality would exist in the states covered by the ninth circuit including Alaska, California and Nevada.

    The trouble is that the Suprem Court wouldn’t allow this to remain to be the case and would hear an appeal. The issue of who has standing to appeal is very interesting. If only California states officials have the power to appeal, California would have marriage eqaulity but another case would have to occur if the Supreme Court were to ever legalise marriage equality.

  • Gary B.

    By the way you describe it, it seems like it pretty much can’t be overturned for it to reach the Supreme Court. Do you believe the 9th Circuit court will overturn Judge Walker’s decision or not? It seems like it was such an overwhelming and comprehensive decision that it would be unlikely it would get overturned, but obviously I’m not well versed in the law.

    And how does the DOMA case play into the situation? I understand it’s a separate case, but could that one have a chance of having the Supreme Court legalize gay marriage nationally?

    While I obviously want gay marriage legal in California, most people, like myself, won’t truly be happy with the situation until it’s legalized nationally. I believe that once that happens, even though there would be some initial backlash and hatred, acceptance would grow rapidly. Obviously there are still people who aren’t thrilled about civil rights for African Americans or interracial marriages. God knows there are probably people out there who would rather not have women voting even, but their numbers are always dwindling. Once national gay marriage becomes the law of the land, the time when that wasn’t the case will start to fade into more and more distant memory and acceptance will accelerate.

  • Jaroslaw

    OK, Paschal, if the 9th circuit covers those states, then that decision should stand. In other words, I don’t understand why the circuits are supposed to cover those states, but if the issue is contentious, the decision isn’t valid?

    why would SCOTUS intervene? There are five states where marriage is recognized (but three or four don’t actually perform them if I’m correct.) Why doesn’t SCOTUS intervene there as well?

  • Paschal

    @Gary B.: Judge Walker did make a very strong decision. Whether one supports marriage equality or not, one has to admit that David Boies and Ted Olsen made an excellent case while the other side made a very poor case, to say the very least. I doubt the ninth circuit would overturn his decision. SCOTUS is much more unpredictable though. SCOTUS could let a ninth circuit decision favouring marriage equality stand but this is unlikely.

    The DOMA case in Massachusetts concerns section 3 which prohibits the federal government from recognising gay marriages. Massachusetts argues that the states decide marriage law so the federal government has no business treating gay married couples who are recognised as married by their state differently from straight married couples. The Massachusetts case is not being argued on the basis of denying gay couples the right to marry is unconstitutional but rather that the federal government is overstepping its authority.

    @Jaroslaw: The are thirteen circuits. The ninth is the largest. The ninth is actually very large in terms of geographical size. It basically covers most of the western United States. The decision of the ninth circuit is valid only in the states under its jurisdiction. Its decisions stand unless SCOTUS decides otherwise. My point is that SCOTUS wouldn’t allow a federal constitutional right to gay marriage exist in a huge portion of the U.S.A. while in the rest of the country no such right would exist despite all states being bound by the exact same federal constitution.

    SCOTUS only intervenes when a federal issue arises. The states which have legalised marriage equality through the courts did so based on the provisions of their own state constitutions. As there is no federal constitutional prohibition on marriage equality, the states are free to decide the issue through their own courts and through their own legislators. Supreme Court precedent means that the states are bound by the federal constitution. It was once the case that the federal constitution only applied to the federal governemnt.

  • Hyhybt

    All right: what happens if the appeals court decides they *do* have standing, hears the case, upholds the existing decision, and the Supreme Court says they *don’t* have standing? Someone above said they’re stricter about that sort of thing. Would they (could they) hear the case anyway? Would they rule the appeal should not have been allowed, and restrict the decision to California again?

  • Paschal

    *on the basis that

  • Paschal

    @Hyhybt: The Supreme Court is the body which decided on the issue of standing in the first place. If the ninth cirucit decided that the opponents of marriage equality had standing, upheld Judge Walker’s ruling and SCOTUS decided that they lacked standing, the ninth circuit’s ruling would be invalid.

  • Paschal

    @Paschal: No. 28 should read: Apparently the judges who will decide whether or not the opponents of marriage equality have standing to appeal will not be the panel of judges who stayed Judge Walker’s decision.

  • Paschal

    @Paschal: According to TIME magazine, the judges who stayed Judge Walker’s ruling may not be the judges who will decide the standing of vertain marriage equality opponents to appeal this December.

  • Paschal

    Arguments will be heard on 6 December. It’s unknown when a decision will be given by the ninth circuit.

  • Jollysocks

    Just so everyone is on the same page — the 9th Circuit doesn’t cover Utah. It covers California, Nevada, Oregon, Washington, Montana, Idaho, Arizona, Hawaii, and Alaska (yes, it’s a BIG CIRCUIT).

    Just imagine, if the 9th strikes down anti-gay marriage laws in all of these states, we’d get to see Jan Brewer’s, Linda Lingle’s, and Sarah Palin’s heads all exploding on the same day!!

  • Gary B.

    @Paschal: You said, “I doubt the ninth circuit would overturn his decision. SCOTUS is much more unpredictable though. SCOTUS could let a ninth circuit decision favouring marriage equality stand but this is unlikely.”

    So your educated opinion/conjecture is that the 9th circuit will not overturn Walker, but that SCOTUS will? What leads you to believe that SCOTUS will overturn it. Is it common that two lower courts will rule one way and then on appeal to SCOTUS it is overturned, or is that the exception? Is that a rare exception?

    What’s the best case scenario here. If the 9th circuit and SCOTUS both don’t overturn the decision, what does that mean for gay marriage nationally? What happens then, how fast and in what order?

    Thanks man, sorry to burden you with questions, but you seem to know what the hell you’re talking about and I’m genuinely interested…

  • Paschal

    @Gary B.: I don’t say that SCOTUS won’t agree with the pro-marriage equality side. It’s just that it takes four out of nine Supreme Court jusdges to get a case to be heard before SCOTUS. These judges could just let the constitutional challenge end if the ninth circuit overturned Judge Walker’s ruling. It’s also true though that the more liberal judges could bring an appeal before the court.

    If SCOTUS agrees with Judge Walker then marriage equality would exist throughout the U.S.A.

  • Gary B.

    @Paschal: Well it’s an exciting possibility. Five years ago this would have seemed very difficult to conceive of, much less 15 years ago or 25 years ago. Of course it hasn’t happened yet, but once it’s out there as something people can conceptualize as a very real possibility, even if we are defeated in the short term, they won’t let go of the dream and it will happen eventually. Hopefully, it will be sooner rather than later. Of course people who are anti-gay marriage are probably floundering around and wondering how this ever even became an issue in the first place, but this is where gay rights was going all along, even before we were aware of where it was going!

    Thanks so much for answering my and other people’s questions – it’s much appreciated! :-D

  • B

    No. 43 · Gary B. asked a series of questions.

    1. As to Paschal’s statement that the U.S. Supreme Court is much more unpredictable, we have a lot of data on how the U.S. Supreme Court rules, and there are 5-4 decisions on gay rights (citation: http://gayrights.change.org/blog/view/the_us_supreme_courts_5-4_gay_rights_split ). When it is that close, there is a fair chance of any given case going either way.

    2. The outcome regarding gay rights nationwide, if it reaches the Supreme Court, depends on the details of the ruling. If the court rules there was no standing to appeal, Judge Walker’s decision would take effect and it would be California-only. If they overturn Proposition Eight on the grounds that discrimination against gays is unconstitutional, the effect would be nation-wide. If they object to details specific to Proposition Eight, including how the campaign was run (the obvious animus), the outcome might be tightly tied to a specific situation that might not be likely be repeated precisely enough for the decision to have an impact in other states. There are a number of variables, so we’ll have to wait and see (and the examples above are not a complete list of possible outcomes).

  • B

    No. 41 · Paschal wrote, “certain Arguments will be heard on 6 December. It’s unknown when a decision will be given by the ninth circuit.”

    LOL – I gave the date in No 12, where I provided a quote of the actual ruling. Curiously, while there were many more favorable ratings, 2 people gave me a “thumbs down” even though I had merely given a URL and a verbatim quote of the appellate-court decision, which I figured would be useful for the discussion – it is always better to use the original material rather than someone’s paraphrase of it. For some reason, you got 0 negative ratings. Go figure.

    It wouldn’t surprise me if some “Yes on Eight” people are trying to sabotage the discussion by playing with the rating system: it’s hard to claim “judicial bias” and “activist judges” when people read the actual court decisions that show nothing of the sort.

  • Jaroslaw

    I will continue to say “B” that this rating system is silly. If enough negs come up the comment is hidden. Why? Just let people read or skip the comments at will. When thousands of people read these things anyway, it seems silly to tally three ups to 4 downs or even 28 when someone is really obnoxious. If you agree, can’t we let Queerty know? I’m awaiting the day the rating comments is removed.

  • Jaroslaw

    And as you say, there often is no logic to a negative comment when your passing on objective and/or neutral info! :)

  • Paschal

    @B: You gave the date of submission of the legal briefs and of the hearing on 6 December. Where exactly did I contradict you? The word ”*certain” in comment No. 41 was a spelling correction of a word in comment No. 40 so your quote should read: ”Arguments …”.

    I agree with you about people thumbing down some comments which would hardly be controversial among people who support gay rights. The rating system is abused.

  • B

    No. 48 · Jaroslaw wrote, “If you agree, can’t we let Queerty know? I’m awaiting the day the rating comments is removed.”

    I tried, but what I imagine is going on is that QUEERTY got the the software to implement it from a third party that could care less once paid, and QUEERTY isn’t willing to scrap it as a failed experiment.

    BTW, they could base the “hide comment” criteria on the fraction of negative comments given the number of people who viewed the article, and then allow some administrative review so that purely factual posts don’t get hidden. But that would take a software change and a tiny amount of staff time.

  • B

    No. 50 · Paschal wrote, “@B: You gave the date of submission of the legal briefs and of the hearing on 6 December. Where exactly did I contradict you?”

    Read the whole post – I was commenting on the fact that 2 people gave my post a “thumbs down” even though it was a quote of the appellate-court decision, while they did not complain about you providing some of the same information some time later. It wasn’t a contradiction between what we said, but rather a curious reader reaction that frankly does not make sense.

  • Hyhybt

    It does make sense, though: earlier comments are seen by more people, and I doubt most people who don’t subscribe ever come back to see what else people have said.

  • B

    in No. 53 · Hyhybt wrote, “It does make sense, though: earlier comments are seen by more people, and I doubt most people who don’t subscribe ever come back to see what else people have said.”

    … QUEERTY tracks who made a rating (if you accidentally try to rate the same post twice, they won’t let you do that), so they could base hiding a comment on the fraction of the total number of viewers who don’t like it, but that is not what they are doing.

  • Jaroslaw

    #53 but why bother hiding and/or rating at all? Just let the comments show and people can read or not as desired.

  • Jaroslaw

    sorry, I meant “B” #54 but since I’m posting again, I just don’t see the purpose of rating comments at all.

  • B

    No. 56 · Jaroslaw wrote, “sorry, I meant “B” #54 but since I’m posting again, I just don’t see the purpose of rating comments at all.”

    I don’t think it is such a good idea either but if they are going to do it, they should at least try to mitigate the damage.

  • SVC

    Prop 8, stating that behavior is not a discriminatory factor. You can only be discriminated against for what you are, not what you do. Homosexuality is what you do, not who you are. Marriage is a federally regulated event which definition is union between one man and one woman to become one unit and have children to support the government with. A homosexual or gay |||union between one man and one woman||| is still the same right to marry. The government does not regulate things that would harm it, like the region Scandinavia was harmed.

  • Jaroslaw

    SVC – who put you in charge of defining what Homosexuality is or is not? I’m not going to go down the mushy feel-good slope of “anyone can define anything for themselves” – society couldn’t exist.

    But the world has not fallen apart in the many years that Vermont has had civil unions now marriage, Massachussetts is still moving along rather well and they have SSM. So what are you talking about Scandinavia? Your sentence makes no sense to me.

    The other thing you’ve failed to address, if I get the gist of what you’re saying – MEN AND MEN will live together, WOMEN WITH WOMEN and a lot of them will have children. They just won’t have government protections and benefits. Where is the sense in that? Let’s not forget all the closet cases who get married and cause REAL HARM by marrying the opposite sex because of the social stigma AGAINST being Gay.

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