Same-Sex Marriage Update

[Toughy]

Originally Posted by Corkey

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9th Circuit Ruling on Motion for Stay Pending Appeal
AUGUST 16, 2010
“Appellants’ motion for a stay of the district court’s order of August 4, 2010 pending appeal is GRANTED. The court sua sponte orders that this appeal be expedited pursuant to Federal Rule of Appellate Procedure 2. The provisions of Ninth Circuit Rule 31-2.2(a) (pertaining to grants of time extensions) shall not apply to this appeal. This appeal shall be calendared during the week of December 6, 2010, at The James R. Browning Courthouse in San Francisco, California.
The previously established briefing schedule is vacated. The opening brief is now due September 17, 2010. The answering brief is due October 18, 2010. The reply brief is due November 1, 2010. In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing. See Arizonans For Official English v. Arizona, 520 U.S. 43, 66 (1997).

IT IS SO ORDERED.”

We are on our way to the 9th District Court of Appeals! This is good news for the rest of the nation. I'm sorry for Californians, but in the end I think we shall prevail.

So the 9th Circuit is going to move quickly.....first week of Dec. I figured the stay would be upheld.

msdemeanor (or anyone else)..........is this the full Court or the 3 Judge panel on why there is standing for an appeal?

[Cyclopea]

Originally Posted by Toughy

So the 9th Circuit is going to move quickly.....first week of Dec. I figured the stay would be upheld.

msdemeanor (or anyone else)..........is this the full Court or the 3 Judge panel on why there is standing for an appeal?

3 judge motion panel extended the stay. Different 3 judge merit panel will decide if there is standing. (See post #451)

[Cyclopea]

"First, and drastically most importantly, the Court granted the stay. Consequently the thousands of couples who were waiting for the day of equality will have to wait at least a few more months until December. 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?

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.

Third, the Court specifically orders the Prop 8 proponents to show why this case should not be dismissed for lack of standing. 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."

[MsTinkerbelly]

Originally Posted by Cyclopea

"First, and drastically most importantly, the Court granted the stay. Consequently the thousands of couples who were waiting for the day of equality will have to wait at least a few more months until December. 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?

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.

Third, the Court specifically orders the Prop 8 proponents to show why this case should not be dismissed for lack of standing. 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."

LOL---sorry! I was posting at the same time as you were and posted just about the same thing!

[MsTinkerbelly]

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.”

[christie]

Originally Posted by MsTinkerbelly

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.”

Just an FYI about the prop 8 trial tracker - we got to meet Phyllis (one of the NOM trackers) on Sunday - she was just great. There is a pic posted of yours truly and Jess about halfway down the page. I'm the one with the pink (ugh) backpack! Our son is the tall kid in the plaid hat behind us. Its not the greatest picture in the world - after a morning of touristy hell in the rain, we were just glad to be standing still!

Also - lil fella, Will Phillips - well, I won't be surprised if he is a world leader. Its amazing what our kids can teach us if we listen.

[MsTinkerbelly]

Originally Posted by christie0918

Just an FYI about the prop 8 trial tracker - we got to meet Phyllis (one of the NOM trackers) on Sunday - she was just great. There is a pic posted of yours truly and Jess about halfway down the page. I'm the one with the pink (ugh) backpack! Our son is the tall kid in the plaid hat behind us. Its not the greatest picture in the world - after a morning of touristy hell in the rain, we were just glad to be standing still!

Also - lil fella, Will Phillips - well, I won't be surprised if he is a world leader. Its amazing what our kids can teach us if we listen.

Awesome picture!

I had seen the picture when looking through the site...I love seeing pictures of Butch-Femme couples!

[Cyclopea]

Originally Posted by christie0918

Just an FYI about the prop 8 trial tracker - we got to meet Phyllis (one of the NOM trackers) on Sunday - she was just great. There is a pic posted of yours truly and Jess about halfway down the page. I'm the one with the pink (ugh) backpack! Our son is the tall kid in the plaid hat behind us. Its not the greatest picture in the world - after a morning of touristy hell in the rain, we were just glad to be standing still!

Also - lil fella, Will Phillips - well, I won't be surprised if he is a world leader. Its amazing what our kids can teach us if we listen.

Great Pic!
http://www.flickr.com/photos/courage...gn/4895011402/

[AtLast]

Originally Posted by Cyclopea

3 judge motion panel extended the stay. Different 3 judge merit panel will decide if there is standing. (See post #451)

ARGH! I really thought the 9th Circut would lift the stay!! I see power in the numbers of same-sex couples getting married for the long-term battle in this for California!

Wishful thinking! Damn! This puts these marriages on hold until December!!

[MsTinkerbelly]

.

By LISA LEFF, Associated Press Writer Lisa Leff, Associated Press Writer – 14 mins ago
SAN FRANCISCO – A federal appeals court put same-sex weddings in California on hold indefinitely Monday while it considers the constitutionality of the state's gay marriage ban.

The decision, issued by a three-judge panel of the 9th U.S. Circuit Court of Appeals, trumps a lower court judge's order that would have allowed county clerks to begin issuing marriage licenses to same-sex couples on Wednesday.

Lawyers for the two gay couples that challenged the ban said Monday they would not appeal the panel's decision on the stay to the Supreme Court.

In its two-page order granting the stay, the 9th Circuit agreed to expedite its consideration of the Proposition 8 case. The court plans to hear the case during the week of Dec. 6 after moving up deadlines for both sides to file their written arguments by Nov. 1.

"We are very gratified that the 9th Circuit has recognized the importance and the pressing nature of this case by issuing this extremely expedited briefing schedule," said Ted Boutrous, a member of the plaintiffs' legal team.

A different three-judge panel than the one that issued Monday's decision will be assigned to decide the constitutional question.

Chief U.S. District Court Judge Vaughn Walker decided last week to allow gay marriages to go forward after ruling the ban violated equal protection and due process rights of gays and lesbians guaranteed under the U.S. Constitution.

The Proposition 8 legal team quickly appealed Walker's ruling in the case many believe will end up before the Supreme Court.

Lawyers for two same-sex couples had joined with California Attorney General Jerry Brown in urging the appeals court to allow the weddings, arguing that keeping the ban in place any longer would harm the civil rights of gays and lesbians.

Walker presided over a 13-day trial earlier this year that was the first in federal court to examine if states can prohibit gays from getting married without violating the constitutional guarantee of equality.

Supporters argued the ban was necessary to safeguard the traditional understanding of marriage and to encourage responsible childbearing.

Opponents said that tradition or fears of harm to heterosexual unions were legally insufficient grounds to discriminate against gay couples.

Currently, same-sex couples can legally wed only in Massachusetts, Iowa, Connecticut, Vermont, New Hampshire and Washington, D.C

[MsTinkerbelly]

BREAKING: 9th Circuit STAYS Judge Walker’s ruling; Appeal scheduled December 6
By Eden James

Just in from the U.S. 9th Circuit Court of Appeals:

Docket Text:
Filed order (EDWARD LEAVY, MICHAEL DALY HAWKINS and SIDNEY R. THOMAS) Appellants’ motion for a stay of the district court’s order of August 4, 2010 pending appeal is GRANTED. The court sua sponte orders that this appeal be expedited pursuant to Federal Rule of Appellate Procedure 2. The provisions of Ninth Circuit Rule 31-2.2(a) (pertaining to grants of time extensions) shall not apply to this appeal.

This appeal shall be calendared during the week of December 6, 2010, at The James R. Browning Courthouse in San Francisco, California. The previously established briefing schedule is vacated. The opening brief is now due September 17, 2010. The answering brief is due October 18, 2010. The reply brief is due November 1, 2010. In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing. See Arizonans For Official English v. Arizona, 520 U.S. 43, 66 (1997). IT IS SO ORDERED. [7441574] (JS)

More to come as news develops…

UPDATE BY BRIAN DEVINE (cross-posted at Calitics):

Three things:

First, and drastically most importantly, the Court granted the stay. Consequently the thousands of couples who were waiting for the day of equality will have to wait at least a few more months until December.

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.

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.

UPDATE BY EDEN: Here’s the actual document, per Kathleen in the comments. Same as the text above:

CA9Doc 14


UPDATE BY EDEN: The AP says more about possible next steps:

The decision, issued by a three-judge panel of the 9th U.S. Circuit Court of Appeals, trumps a lower court judge’s order that would have allowed county clerks to begin issuing marriage licenses to same-sex couples on Wednesday.
[...]
The plaintiffs could now appeal the 9th Circuit decision to Supreme Court Justice Anthony Kennedy, who handles emergency motions for the high court.

UPDATE BY EDEN: The American Foundation for Equal Rights just released their statement in response:

Official Prop. 8 Plaintiffs Statement on Today’s Ninth Circuit Ruling

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. Today’s order can be found here: http://www.equalrightsfoundation.org...ending-appeal/

“We are very gratified that the Ninth Circuit has recognized the importance and pressing nature of this case and the need to resolve it as quickly as possible by issuing this extremely expedited briefing schedule. As Chief Judge Walker found, Proposition 8 harms gay and lesbian citizens each day it remains on the books. We look forward to moving to the next stage of this case,” said Attorney Theodore B. Olson.

“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.

The American Foundation for Equal Rights and plaintiffs Kris Perry, Sandy Stier, Paul Katami and Jeff Zarrillo challenged Proposition 8 in federal court for violating the U.S. Constitution. After a three-week trial (including the testimony of 17 plaintiffs’ witnesses, among them the foremost experts on the relevant issues, and thousands of pages of documents and a wealth of other evidence) the Court ruled last Wednesday, August 4, that Proposition 8 violated the rights to equal protection under the law and due process that the U.S. Constitution guarantees to every American

[PearlsNLace]

Thank you, each and everyone of you who keep this thread going, who keep making posts that explain the legaleez of whats going on, for quoting the folks who have something important (and even understandable) to say.