Surprising court watchers on both sides of the marriage debate, the 9th U.S. Circuit Court of Appeals moved swiftly and succinctly on Monday to grant a request to keep California’s marriage amendment in place until the appeals process has run its course.
In a 3-0 decision, the appeals court reversed District Judge Vaughn Walker’s decision, which would have overthrown the will of 7 million Californians and allowed same-sex marriages to begin again in California on Wednesday at 5pm.
The court also suspended the normal time limits for hearing a case and set forth the following schedule:
- The opening brief is now due Sept. 17
- The answering brief is due Oct. 18
- The reply brief is due Nov. 1
- Oral arguments will start the week of Dec. 6
Ed Whelan, constitutional scholar and president of the Ethics and Public Policy Center, made four observations in a post on The National Review Online:
1. ”The Ninth Circuit’s grant of a stay of Judge Walker’s judgment pending appeal provides yet further compelling evidence that Walker has gone utterly bonkers in his egregious mishandling of this case. Walker’s denial of the stay threatened to dramatically alter the status quo before a higher court could even review his radical ruling. Walker must have been thoroughly intoxicated by his own bias to imagine that his denial would stand.
“This is the third time that a reviewing court has smacked down Walker in this case… The primary effect of Walker’s gratuitous resort to a trial has been to delay the ultimate outcome of this case by a year or so.”
2. ”It’s now a safe bet that any Ninth Circuit ruling in favor of the anti-Prop 8 side (on whatever grounds) would be stayed … it’s highly unlikely that the Supreme Court would rule on the merits of the case before June 2012.”
3. ”Walker’s reversals also call into question the judgment of the supposed dream team of plaintiffs’ lawyers, Ted Olson and David Boies.
“Oh, to be sure, there’s propaganda value in the fawning media coverage that Walker’s trial and ruling have received—all the more so as the media have mindlessly parroted Walker’s and Olson’s wild distortions of allegedly (but not in fact) damning concessions by Charles Cooper, counsel for Prop 8 proponents…
“But despite their massive advantage in resources, Olson and Boies have lost to Cooper and his team on every issue that has been decided by any court other than Walker’s.”
4. ”On the substance, for the reasons that I’ve indicated, I doubt very much that the case will be decided on standing grounds…it may well be that a determination that appellants lack standing would require that Walker’s judgment be vacated.”
Even those who agree with same-sex marriage realize how Walker’s actions may actually backfire.
In an article for Time magazine, liberal University of California-Davis law professor Vikram Amar, said:
“If the proponents don’t have standing to appeal, then it’s entirely plausible that the courts will rule that they did not properly have standing to go to trial. This is an issue he glossed over when he allowed them to intervene in the trial.”
Liberal blogger Emily Bazelon wrote on Slate.com:
“(I)sn’t it odd to think that a majority of the voters could pass a law, and then just because the governor and the attorney general don’t like it, no one gets to stand up for it on appeal? Especially after they’ve been allowed to do so at trial? It’s an outcome that allows a court challenge to trump voter preferences in a way that just seems undemocratic and out of joint…(and) it’s declaring victory before actually winning on the merits.”
“It made no sense to impose a radical change in marriage on the people of California before all appeals on their behalf are heard, so the 9th Circuit’s decision is clearly the right call,” said Jim Campbell, litigation staff counsel for the Alliance Defense Fund. “Refusing to stay the decision would only have created more legal confusion surrounding any same-sex unions entered while the appeal is pending. This case has just begun. ADF and the rest of the legal team are confident that the right of Americans to protect marriage in their state constitutions will ultimately be upheld.”
FOR MORE INFORMATION
Read Ed Whelan’s entire analysis on NRO’s Bench Memos.
Read today’s Op-Ed in The Washington Post by former Attorney General Edwin Meese.
Read the 9th Circuit’s Aug. 16 Order on Motion for Stay Pending Appeal.
Read the Aug. 16 reply brief by proponents of Prop 8.
Read the Aug. 13 marriage opponents opposition to the Motion to Stay.
Read the Aug. 13 city and county of San Francisco’s opposition to Stay Appeal.
Read the Aug. 13 Scheduling Order
Read the Aug 13 attorney general’s opposition to Emergency Motion for Stay Pending Appeal.
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