Friday, August 13, 2010

California Weddings Will Begin, Probably

Yesterday a California judge has stayed the ruling overturning a law banning same-sex marriages until August 18th. Double negatives are confusing, this is a triple! Gay couples are ready to line up for their marriage licenses, but nobody really knows what's going to happen next.

On one hand, the judge says, go ahead and get married, starting next week. On the other hand, he is saying, you can't get married until next week. I have seen news headlines interpreting it both ways.

The question has to do with an appeal. The judge could have nodded to the organist and started the parade of blushing spouses immediately, but he gave the anti-marriage side a week to file an appeal. The people who are against marriage are really against it and will do anything to stop it, but there are a couple of problems for them. First of all, their case was devastated in court. They didn't just lose, they drowned, sunk in humiliation. The judge ruled not only that the law was unconsitutional, but he went out of his way to document the fact that those who supported it were neither smart nor nice.

The other problem is that they might not have standing for an appeal. Andrew Sullivan let one of his commenters carry the ball here:
After all, standing is determined by material harm. Your interests or your rights must have been diminished in some way in order to file suit to protect them. Now, the anti-8 plaintiffs filed suit against Schwarzenegger, so he was brought into the suit unwillingly. But it's the pro-8 crowd who wants to appeal. Denying standing would be, in effect, that their interests were not harmed by the decision of Judge Walker. That is, they lose nothing as a result of gay marriage being legal. In other words, the legality of gay marriage does not diminish the sanctity of straight marriage. Do Prop 8 Proponents Have Standing To Appeal? Ctd

It may be frustrating to make the eager couples wait another week, but it is prudent. After all, if a way is found to appeal, and the appeal wins, you wouldn't be able to un-marry hundreds of couples, they would live in a unique legal niche that would require special handling.

Supporters of Proposition 8 have filed an appeal, but the court will likely not accept their request, since they were not named in the original lawsuit, which was against the governor of California. Arnold Schwarzenegger has already said he'd be happy to hear the wedding bells ringing, he's not going to appeal the decision. The only way the anti-marriage advocates can get an appeal heard by the court would be if they could prove that they were somehow harmed by Judge Walker's decision -- and part of that decision was a finding that nobody is harmed if gay people marry.


Anonymous David S. Fishback said...

Judge Walker's stay will expire on Wednesday if the 9th Circuit does not act to keep it in place.

The standing argument raised by Sullivan and Jeffrey Toobin is a little misleading, I think. The issue is not, strictly speaking, standing, since the ADF group had standing to defend Prop 8 in Court. I think the real argument is whether they -- or anyone else -- can show irreparable damage if the stay is lifted and the ADF ultimately prevails. It is kind of hard to make that argument, since California already has gay married couples from the earlier state court litigation.

Nevertheless, given the magnitude of the ruling, it would not suprise me if judges who would, at the end of the day, be likely to affirm Judge Walker's decision, might think it wiser to keep the status quo until the appeal is decided.

Even beyond that point, whatever the 9th Circuit does or does not do now may not indicate anything about the ultimate outcome on appeal. Here is why:

I don't know the precise process in the 9th Circuit, but I doubt that all of the 9th Circuit Judges -- there are around 30 of them -- will make the stay decision together. I don't know whether a randomly-selected three judge panel, or maybe even a panel selected by the Chief Judge Kozinski (who was appointed by Ronald Reagan), will fill that role. For an interesting related item re Judge Kozinski, who was one of the Reagan wonderkinds placed on the bench in the 1980s, take a look at this:

Significantly, the members of the panel of judges who decide the stay issue are not likely to be the same judges who hear the actual appeal. With about 30 judges on the 9th Circuit, it is something of a crapshoot as to which judges hear which cases -- although judges tend to hear cases that are presented in the part of the Circuit where they live. The 9Circuit includes California, Arizona, Nevada, Montana, Idaho, Oregon, Washington, Alaska, and Hawaii.

August 13, 2010 12:21 PM  

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