The Ninth Circuit has put on hold an August 4 federal court ruling that overturned California’s ban on same-sex marriages. Responding to a request by backers of Proposition 8, the motions panel of the appeals court said the prohibition on same-sex marriages would remain until a three-judge panel can begin wrestling with an appeal later this year. The court has fast-tracked the appeal, agreeing to take up the case the week of December 6.
Legal analysts have questioned whether backers of Proposition 8 have legal standing to appeal the Aug. 4 ruling because they are “intervenors,” not defendants, in the case (the state refused to defend Prop. 8). Judge Vaughn Walker said they do not have standing, in his view. The appeals court acknowledged that issue today, telling both sides to include in their opening briefs “a discussion of why this appeal should not be dismissed for lack of Article III standing.”
To get legal standing under Article III of the U.S. Constitution, Prop 8 backers would conceivably need to show that Judge Walker’s ruling allowing same-sex marriages directly harms them. But Prop. 8 backers said in a recent court filing that California law “allows proponents to defend initiatives they have sponsored when government officials ‘might not do so with vigor’ in order ‘to guard the people’s right to exercise initiative power.’ ”
“Proponents also have standing to appeal because of their own particularized interest in defending an initiative they have successfully sponsored, an interest that is created and secured by California law,” the filing said.
But opponents of Prop. 8 disputed that view. “The Supreme Court has never ‘identified initiative proponents as Article-III-qualified defenders of the measures they advocated,’ ” they wrote in their brief.
The opening brief is due Sept. 17th.
Court Prop 8 website
Text of the order:
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)