Well, the 9th Circuit has granted a stay of Judge Walker's ruling in Perry v. Schwarzenegger and has set an expedited schedule for briefs, etc. Significantly, the 9th Circuit noted its concerns on the issue of the Prop 8 supporters' standing to appeal the case. While I had hoped the Court would simply reject the appeal immediately, this way we can hope that the Prop 8 supporters will end up having their heads handed to them and that the 9th Circuit slams them for lack of standing - something that would be good precedent against future Christianists efforts to appeal eve though the state or states in question choose not to appeal a ruling. I can only hope that David Barton's worse fears come to be realized before this is all over. Here are highlights from the American Foundation for Equal Rights on this development:*
Today the United States Court of Appeals for the Ninth Circuit set a highly expedited schedule for briefing and argument of proponents’ appeal from the district court’s August 4, 2010 decision striking down California’s Proposition 8 as an unconstitutional violation of the rights of gay and lesbian citizens to due process and equal protection of the law under the Fourteenth Amendment, and it granted proponents’ request to stay the judgment of the district court’s order while the appeal is decided. This means that although Californians who were denied equality by Proposition 8 cannot marry immediately, the Ninth Circuit, like the district court, will move swiftly to address and decide the merits of Plaintiffs’ claims on their merits.
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“Today’s order from the Ninth Circuit for an expedited hearing schedule ensures that we will triumph over Prop. 8 as quickly as possible. This case is about fundamental constitutional rights and we at the American Foundation for Equal Rights, our Plaintiffs and our attorneys are ready to take this case all the way through the appeals court and to the United States Supreme Court,” said Chad Griffin, Board President, American Foundation for Equal Rights.
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Calitics has the following analysis of what the 9th Circuit action means. The following are highlights:
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First, . . . It's interesting that the panel does not at all discuss the reasons for their decision on the motion to stay. That's because if they went through the factors, there's no way they could rationalize the stay. They themselves raise the issue of standing and express an inclination that the case should be dismissed on that basis. How, then, could they possibly determine that the Appellants have a "high likelihood of success on the merits"? And how can they show that the Appellants will suffer any harm if loving couples in California are allowed to marry each other?
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Second, the Court wants this case to be resolved quickly. Appellants' opening brief is due in just a month and the hearing will happen on December 6th. This is lightning quick for a Federal Court of Appeals, and it's a very good sign. The Court understands that this case is important, and it doesn't want it to linger.
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Third, the Court specifically orders the Prop 8 proponents to show why this case should not be dismissed for lack of standing. Here's a discussion of the standing issue. This is very good news for us. It shows that the Court has serious doubts about whether the Appellants have standing. Even better, the Court is expressing an opinion that its inclination is that the case should be dismissed. That being said, the panel that issued this Order (the motions panel) is not the same panel that will hear that case on the merits. The merits panel will be selected shortly before December 6th and we don't know the three judges who will be on the merits panel. But this is a very good sign that the appeal could be dismissed on the ground of standing alone.
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