August 16, 2010
(If you haven’t heard the news, the 9th Circuit Court of Appeals just stayed Judge Vaughn Walker’s ruling on Proposition 8. If you want to catch up on the news from the 9th Circuit and many of the reactions to it, on both sides, click here. Meanwhile, use this post for ongoing discussion in the comments, as the previous post is overflowing. — Eden)
By Eden James
Chris Geidner over at Metro Weekly breaks the news on AG Jerry Brown deciding not to appeal the stay decision:
Jim Finefrock, Brown’s director of communications, told Metro Weekly on Monday evening that the attorney general would not be appealing the decision to grant the stay.
“The stay was reinstituted, and that’s what we have to deal with now,” Finefrock said, adding, “We are evaluating whether we’ll have anything to say about standing in this case.”
In its initial filing before the Ninth Circuit, the Attorney General’s office took no position on whether the proponents have standing to bring the appeal.
Meanwhile, Prof. Tobias Wolff, who helped the equality side with Prop 8 litigation during the California Supreme Court phase, just emailed me the following opinion on the 9th Circuit’s stay ruling and its significance to the case:
AFER’s optimistic assessment is not just spin. The Ninth Circuit’s expedited briefing schedule is significant. Also highly significant (though AFER does not mention it in their release) is the Ninth Circuit’s instruction to the parties to focus particular attention on the question of whether the appeal should be dismissed for lack of jurisdiction due to the proponents’ lack of independent standing.
A victory in this appeal on the jurisdiction / standing issue would be phenomenal. Although the principles established in Judge Walker’s ruling would only result in the striking down of Proposition 8, rather than the establishment of marriage equality nationwide, dismissal of the appeal would eliminate the risk associated with bringing these claims before the Supreme Court of the United States — the most conservative Court that we have had in the last fifty years, in many respects — and Judge Walker’s devastating analysis of the factual record and the utter lack of evidence supporting any reason for excluding same-sex couples from marriage would remain on the books and be available for us to cite in all our future efforts at litigation and legislative reform.
It is frustrating that California couples will need to wait yet longer to have their rights vindicated, but this order holds much promise for the successful elimination of Proposition 8 once and for all.
UPDATE BY EDEN: California Assembly Speaker John A. Pérez (D-Los Angeles), the state’s first openly gay legislative leader, has issued the following statement:
“Today’s ruling by the Ninth Circuit panel is consistent with the fact that groundbreaking decisions are often stayed pending appeal. The fact that the Court is expediting the hearing schedule only underscores the point Judge Walker made in his ruling: LGBT Californians have suffered, and are suffering, from having our constitutional right to equal protection and due process violated every moment Prop 8 remains in effect. This ruling is a reflection on established legal convention, and in no way diminishes the powerful and eloquent statement in defense of our constitutional rights Judge Walker made in his ruling.”
UPDATE BY ADAM: Here’s NOM’s spin:
Judge Walker gave the 9th Circuit Court of Appeals just 6 days to decide whether or not to overrule his order requiring the immediate issuing of marriage licenses to gay couples. Today the 9th Circuit, one of the most liberal in the country, stepped in to overturn that order, issuing a stay on implementing Judge Walker’s ruling while it is appealed. Another smackdown of Judge Walker by an Appeals Court.
The knotty question of “standing” remains in play, however, since Governor Schwarzenegger and Attorney General Jerry Brown have both failed in their duty to defend the voters who passed Prop 8–and Judge Walker kept Imperial County (which opposes same-sex marriage) from intervening in the case (while allowing San Francisco to become a party).
Here’s the question for today: If anti-Prop 8 lawyer Ted Olson is so convinced that after his vaunted trial the voters of California have no case–why is he now trying to prevent higher courts from reviewing his handiwork?
The judicial bias has been extraordinary, as once again powerful elites attempt to frustrate the manifest will of the people of California. This fight will continue!
UPDATE BY ADAM: A statement from Courage Campaign Founder and Chair Rick Jacobs via press release:
“While we are pleased to see an expedited timeline ordered for appellate review, the 9th Circuit’s decision to grant a stay of Judge Walker’s ruling is obviously disappointing to the thousands of loving families who expected equal access this week to the rights, responsibilities, significance and safety net that only comes with marriage. Ultimately, the facts of this case remain unchanged—a federal court has found Proposition 8 unconstitutional and the initiative’s proponents have admitted in court that they ‘do not have evidence’ to support second class citizenship for millions of American families.
With a majority of Americans now supporting marriage equality, it is clear that we are both on the right side of the Constitution, and the right side of history. In the meantime, we will continue our work to accelerate the shift that’s already underway in the court of public opinion by telling America the truth about what was presented in Judge Walker’s courtroom, and the stories of the millions of American families — both straight and LGBT — who know the destructive power of discrimination first hand.”
Well said. As I’ve been writing in this space, all the work we do here together outside of the legal team makes a difference. We’ll continue our work with some new, exciting efforts coming up to showcase same-sex couples and families and create the kind of climate and momentum that will help win the day in court.
UPDATE BY ADAM: (timely) For those in SoCal, Karen Ocamb, one of the best journalists covering this and friend of Prop8TrialTracker.com whose work is frequently cross-posted here, will be on Warren Olney’s “Which Way LA” radio show on KCRW at 7:00 PM PST/10 PM EST tonight. The station number is 89.9 FM. If you’re not in SoCal, you can listen via this link. I’m listening now. She tells me it will be a barnburner when it comes to her opinion of today’s news.
UPDATE BY ADAM: Karen made the following comment on-air:
Most of the lawyers are, I don’t want to say they’re happy with the ruling, but they’re happy with two things… this stay means the 9th Circuit is taking this very seriously, and that they want a resolution quickly. Second, happy that the 9th Circuit specifically asked the Prop 8 proponents to discuss the issue of standing… that’s considered to be a very good sign. But what’s going on with the legal areas is very different than what’s happening with people’s emotional response, the heavy hearts… we have been waiting our whole lives to have marriage equality, to not be second-class citizens… this stay strikes a blow to all of us, that we can be continually batted around this way.
I think that’s about right. Or, as AndrewPDX wrote in the previous thread:
I am bummed that they extended the stay — the emotional roller coaster continues.
UPDATE BY ADAM: Speaking of SoCal, President Obama is actually in Hollywood tonight for a DCCC fundraiser along with much of the SoCal current and former Congressional delegation, Mayor Villaraigosa, Speaker Pelosi, and others. He arrived at 6:20 PM PST before the ruling came down, but I wouldn’t put it past that the topic didn’t come up later on, or his position on marriage in general.
UPDATE BY ADAM: A very odd post from Maggie over at National Review Online, titled “Chuck Cooper Strikes Back” (it’s only 4 paragraphs, so I re-posted for your convenience):
The Ninth Circuit’s stay overruling Judge Walker’s decision to allow gay marriage is the third time Judge Walker has been slapped down by appellate courts: once by the Supreme Court over the issue of televising the trial; once by the Ninth Circuit over the issue of forced disclosure of private e-mails by campaign leaders; and now by the Ninth Circuit again.
When you read the brief that Charles Cooper filed, it’s not hard to see why. It is a total smack-down of Walker’s decision to ignore the immense amount of evidence brought to him — not to dispute it, but simply to ignore it.
Here’s the National Organization for Marriage’s quick summary of Cooper’s deadly brief, with a link to the actual brief as well. But to give you an example of how extreme Judge Walker is, he ruled that orientation is a protected class subject to strict scrutiny — ignoring ten higher-court decisions to the contrary. He doesn’t contest, distinguish, or disagree. He literally ignores their existence.
This is very odd behavior for a judge.
NCLR Executive Director Kate Kendell said: “Every additional day that couples must wait to marry again in California is painful, but despite the terrible disappointment for the many couples whose right to marry has been delayed yet again, today’s ruling includes another significant victory for our side. The court did the right thing by putting the case on a fast track and specifically ordering that Prop 8 proponents show why they have a legal right to appeal. This ruling brings us one step closer to ending the nightmare of Prop 8 and restoring full equality for all Californians.”
Lambda Legal called the stay “painful.”
“We are saddened by the 9th Circuit’s decision to maintain the stay of Judge Walker’s ruling that Prop 8 is unconstitutional,” said Jennifer Pizer, director of the group’s Marriage Project. “We very much hoped to see same-sex couples again free to celebrate their love and mutual devotion through marriage starting later this week. We know this delay is painful for couples in love, who have been denied their basic rights for too long already.”