August 16, 2010
By Eden James
Just in from the U.S. 9th Circuit Court of Appeals:
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.  (JS)
More to come as news develops…
UPDATE BY BRIAN DEVINE (cross-posted at Calitics):
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:
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/legal-filings/9th-circuit-ruling-on-motion-for-stay-pending-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.
Please see the comprehensive, 136-page decision here: http://www.equalrightsfoundation.org/legal-filings/district-court-decision/
A summary of the trial is available here: http://www.equalrightsfoundation.org/press-releases/perry-v-schwarzenegger-trial-summary/
Video evidence and other court filings are available here: http://www.equalrightsfoundation.org/our-work/legal-filings/
UPDATE BY EDEN: Statement from Evan Wolfson, Executive Director of Freedom to Marry:
“Today’s 9th Circuit order expediting appeal of Chief Judge Walker’s persuasive decision striking down Prop 8 and maintaining a stay during the appellate review, is a disappointing delay for many Californians who hoped to celebrate the freedom to marry and full inclusion in society as soon as possible. But there are many twists in the road to justice, and we are encouraged by the court’s setting a fast pace for the appeal, revealing that the judges understand how important a quick end to the exclusion from marriage is to gay couples, their loved ones, and all Americans who believe in equality under the law.
While the lawyers make the case for the freedom to marry in the courts of law, we have more months in which to make our case in the court of public opinion. The evidence at trial overwhelmingly confirmed that there is no good reason for withholding the freedom to marry from committed couples, and the Governor, the Attorney General, a majority of Californians, and a majority of Americans agree with Judge Walker that the freedom to marry helps families, while hurting no one. Prop 8 should never have been on the ballot and we look forward to seeing its stain removed from the law books, as we push forward on other fronts across the country.”
UPDATE BY EDEN: Brian Leubitz, another Prop 8 Trial Tracker legal analyst (and Calitics founder), just emailed me this reaction on the standing issue:
“With the question of standing, the critical issue is that the State is not appealing — both Attorney General Jerry Brown and Governor Arnold Schwarzenegger have opted not to appeal. While the standing issue would kill the case for a national track, it would leave the state of California as one of the largest jurisdictions in the world to have marriage equality. Furthermore, it would also set us up with a great case on the books for the next round.”
UPDATE BY EDEN: A refresher on Article III and the question of standing, from Joe Mirabella:
The Ninth instructed our opponents to demonstrate “why this appeal should not be dismissed for lack of Article III standing.”
Article III standing means the following:
The legal right to initiate a lawsuit. To do so, a person must be sufficiently affected by the matter at hand, and there must be a case or controversy that can be resolved by legal action.There are three requirements for Article III standing: (1) injury in fact, which means an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical; (2) a causal relationship between the injury and the challenged conduct, which means that the injury fairly can be traced to the challenged action of the defendant, and has not resulted from the independent action of some third party not before the court; and (3) a likelihood that the injury will be redressed by a favorable decision, which means that the prospect of obtaining relief from the injury as a result of a favorable ruling is not too speculative.
There remains significant doubt whether our opponents have the legal right to appeal this decision because the State of California chose not too. The Ninth could rule that proponents of proposition 8 do not have standing, and therefore can not appeal.
The Ninth could decide they do have a right to appeal. If they do, our opponents will have to prove that marriage equality causes harm using the “evidence” they presented in the District Court.
UPDATE BY EDEN: Andrew Pugno, one of the anti-gay architects of the Proposition 8 initiative in California and also a Republican candidate for State Assembly this year, just sent this email from the Proposition 8 Legal Defense Fund (their bolding, not mine):
Dear Supporter of Prop 8:
Great news! The Ninth Circuit Court of Appeals has just now granted our request to suspend Judge Walker’s ruling against Proposition 8! This legal victory upholds the votes of 7 million Californians while the Perry v. Schwarzenegger case is heard on appeal.
If the Ninth Circuit had not granted our motion, then Judge Walker’s decision would have gone into effect on Wednesday, changing the definition of marriage in California despite the vote of the people less than two years ago.
As we pointed out in our motion, Judge Walker’s decision totally ignores virtually all legal precedents, the well-recognized public interest served by fostering traditional marriage, and even common sense itself.
In addition to stopping Judge Walker from imposing same-sex marriage on California, the Court of Appeal also ordered that this case will be expedited. That means our opening legal briefs are due in just 30 days!
So please help support our legal team and all their important work. With the Attorney General and Governor refusing to defend the people’s vote for Prop 8, the entire burden of defending Prop 8 falls up our legal defense team.
We receive no government funding. We rely exclusively on the generous financial support of concerned citizens like you. Please make a special donation right now to help us keep up with the legal costs of defending Prop 8!
Thank you for your prayers and support!
General Counsel, Prop 8 Legal Defense Fund
UPDATE BY EDEN:As the comment thread on this post is getting long, a new post will go up shortly, including news from Attorney General Jerry Brown.