The 9 th Circuit has ordered a stay that will prevent gay marriages from beginning again in California later this week, as they otherwise would have. Some gay rights groups are professing disappointment, but they should probably be relieved. This order makes the 9 th Circuit seem sober and deliberate rather than radical and rash. And that keeps away the Supreme Court. Better to have gay marriage delayed than attract the attention of the conservative justices who sometimes seem like they reverse the 9 th Circuit for sport. This way, the 9 th Circuit will get its crack to rule before the Supremes touch the case in any way. It helps that the three-judge panel acted unanimously and is made up of two Clinton appointees and a Reagan appointee.
The judges' order says that the first brief is due September 17, and that the 9 th Circuit will hear oral argument the week of December 6. That is fast, and rather than complaining, the plaintiffs challenging Prop 8 said that they are gratified by the speedy schedule. The judges asked for briefing on the question of whether the Prop 8 proponents have standing to appeal, as well as on the merits. So now we can all obsess about whether the group of proponents that defended Prop 8 at trial may continue to do so on appeal. I've already started to here .
I still think it would just be odd and unsatisfying for this case to go away because of lack of standing. California ends up with gay marrriage based on a technicality, even though 52 percent of voters supported Prop 8? But in their order today, the 9 th Circuit judges cited the 1997 Supreme Court case Arizonans for Official English v. Arizona , which was about a state ballot initiative that made English the official state language. In that case, after a state employee sued and the district court found that the official-language law was unconstitutional, the state decided not to appeal-just as the governor and attorney general of California have chosen not to this time. When the case got to the Supreme Court, it was thrown out on other grounds, but Justice Ruth Bader Ginsburg, writing for a unanimous court, expressed "grave doubts" that the initiative sponsors actually had standing to appeal. That's not the holding of the case, so the 9 th Circuit or eventually the Supreme Court could take a different path here. But you can see why the idea that the Prop 8 proponents don't have standing is tantalizing to gay marriage advocates. Even if it's really not the best resolution. Anyway, all of this and more will be back in September.
ADDENDUM: One more note about Arizonanans for Official English : In that case, in contrast to the Prop 8 trial, the governor of Arizona did defend the statute at issue before the district court. So Ginsburg framed the question of whether another group could appeal in terms of "standing to defend on appeal in the place of an original defendant ." That helps make clear what's particularly strange about throwing out the Prop 8 appeal for lack of standing: This time, the Prop 8 proponents are the original defendant. Maybe that's how the 9th Circuit or the Supreme Court will see their way to giving the Prop 8 backers standing, despite the rulings that conservative judges have handed down that would point toward dismissal. (Here's a good summary from Erwin Chemerinsky.) But Ginsburg also said that standing "demands that the litigant possess 'a direct stake in the outcome.'" In the past, in many other contexts, the court has been strict about what "direct stake" means. It's not hypothetical and it's not just that you don't like a law. You have to have a concrete injury to have standing. What's the concrete harm to Prop 8 proponents from gay marriage? That's of course a central question not just for getting into court by having standing, but for ruling on the merits of an appeal.