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Supreme Court rejects Prop 8 defenders’ request for emergency stay

Marriage equality Marriage Equality Trials Prop 8 trial Supreme Court

By Jacob CombsProp 8 emergency stay request

In the midst of this weekend’s celebrations in California and across the country, the Prop 8 case experienced one (probably) final hiccup.

It began on Friday afternoon, when we reported that the Ninth Circuit panel that invalidated Prop 8 in February of last year unexpectedly lifted its stay on Judge Vaughn Walker’s lower court ruling striking down the law and instructing California officials not to enforce it.

As we discussed last Wednesday, the proponents of Prop 8, as the losing party before the Supreme Court, have a 25-day window during which they may petition the high court for rehearing of its decision in the Prop 8 case.  (As SCOTUSblog’s Tom Goldstein noted, that 25-day window lasts until July 21, a Sunday, meaning that Monday, July 22 is the actual final date to file such a petition.)  Until that time, although such petitions are almost never granted, the judgment is technically not final.

Despite the fact that the Supreme Court’s decision in the Prop 8 case is not yet technically in effect, the Ninth Circuit has wide discretion over decisions regarding its own stay orders.  Not surprisingly, when the stay was lifted on Friday, same-sex couples in California flocked to city halls to get married–including the two plaintiff couples in the Prop 8 challenge: Kris and Sandy and Jeff and Paul.

On Saturday, Andrew Pugno and lawyers with the Nevada-based Alliance Defending Freedom, which had represented the proponents of Prop 8, submitted a brief with the Supreme Court seeking an emergency order vacating the Ninth Circuit’s decision to lift the stay.  The Ninth Circuit, the lawyers argued, lacked jurisdiction to issue its order lifting the stay, violated the stay order in lifting it and effectively deprived Prop 8’s defenders to the opportunity to petition for a Supreme Court rehearing.

Less than 24 hours later, Supreme Court Justice Anthony Kennedy, the circuit justice for the Ninth Circuit, denied the request without comment.  As SCOTUSblog’s Lyle Denniston noted, there is essentially no way of knowing what legal rationale Justice Kennedy used in making his determination.  Denniston also wryly pointed out the implicit irony in Kennedy’s action, given that he was in the four-justice minority who voted to allow Prop 8’s proponents to defend the law in court.

The proponents’ failure to obtain an emergency stay from the Supreme Court  could likely be the last federal court proceeding in the case.  The proponents still have until July 22 to file a petition for rehearing, but it looks exceedingly unlikely that such a request would be approved.

Of course, the proponents could also attempt to challenge the scope of Judge Walker’s injunction, which some have argued was overly broad and should not have been effective statewide.  Most legal observers find that argument unpersuasive, and now that marriages have begun across California, it seems a stretch that anything could roll back that development.

Still, the proponents of Prop 8 have been tenacious in their defense of the law.  Of course, we’ll have coverage of any and all attempts  they make to postpone what at this point is essentially inevitable.

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