Prop 8 supporters move for emergency stay

And here you thought that whole Proposition 8 story was done and gone, right? It might be, but there’s apparently still a little gas left in the tank. In the wake of last week’s Supreme Court decision on California’s traditional marriage amendment, proponents have requested an emergency stay which would block gay marriages from taking place while some last bits of paperwork are wrapped up. This update comes from SCOTUSblog.

Attorneys for the parties who sought to defend Proposition 8 in federal court have filed an emergency motion in the Supreme Court seeking to block same-sex marriages from proceeding in California. The filing (via Jess Bravin) is available here.

The application was submitted to Justice Kennedy, who is the Circuit Justice with responsibility for the Ninth Circuit Court of Appeals. Its theory is straightforward. Same-sex marriage in California had been blocked by a stay imposed by the Ninth Circuit Court of Appeals on federal judge Vaughn Walker’s ruling that Proposition 8 is unconstitutional. That stay, the court of appeals had stated, would “continue until final disposition by the Supreme Court.”

Tom Goldstein has a good layman’s explanation of what’s going on here at the link above. It does sound fairly straight forward, though what long term impact – if any – it might have is in question. On the day that the Supreme Court announces a judgement, as they did in this case on June 26th, it isn’t technically “final.” The high court generally won’t release their final, binding judgement for another 25 days after the announcement, and according to the applicants, that means that the current stay on the issuance of wedding licenses to same sex couples should remain in place until that binding judgement is on the books.

Doug Mataconis has a bit more on it, explaining how it falls into Justice Kennedy’s lap to deal with this, even though he voted against the majority in this case.

Indeed, even though Justice Kennedy was in the minority in the Hollingsworth case, he’s not going to handle this matter any differently than if it had gone to Chief Justice Roberts, who wrote the majority opinion in that case.

Each Supreme Court Justice is assigned a Judicial Circuit for which they are responsible for dealing with motions and other matters when they arise out of cases pending there, most commonly this is seen in death penalty cases but it arises in other cases as well from time to time. Since their are 9 Justices and 11 Circuits, the least senior Justice, currently Elena Kagan, is given responsibility for matters arising out of two Circuits. Justice Kennedy has had responsibility for the 9th Circuit for the balance of his time on the Court.

There seems to be some question as to whether Kennedy will even consider taking any action on this. It looks like the applicants certainly have the law on their side in terms of not lifting the ban until the ruling is official, but to what purpose? In their filing, they point out that the stay was lifted and licenses were being issued this weekend before they had ever had a chance to respond. That much is clearly true, but generally such time is needed so that the losing side can file appeals or take whatever “the next step” of the process is.

The Supreme Court has ruled on this specific request – not on Proposition 8 itself, but on the standing of the plaintiffs – and there is no further appeal for this particular line of attack. Asking Kennedy to force the state to hold off until July 22nd – the expected date of the official judgement – with no possibility of additional action the meantime, will probably just come off as being churlish at this point. If this battle is to continue it’s going to need to start over with a fresh case, or at least different plaintiffs. With that in mind, I’ll be surprised if Kennedy decides to take this question up and put another three week delay on California.