Despite hopes prompted by several LGBT organizations, news stories and various county clerks across the state of California, same-sex marriages did not begin in California on Wednesday, Aug. 18. Following an Aug. 16 order from the U.S. Ninth Circuit Court of Appeals, Proposition 8 will remain in effect until December, at least.
Neither the plaintiffs in the Perry v. Schwarzenegger lawsuit nor California Attorney General Jerry Brown plan to appeal the Ninth Circuit’s order granting a stay of U.S. District Court Judge Vaughn Walker’s Aug. 4 ruling striking down Proposition 8. The court also – in a move celebrated by opponents of Proposition 8 – set an expedited appellate schedule for the case that will lead to the oral argument in the case being heard the first full week in December.
In the brief order granting the stay and setting the briefing schedule for the appeal, the three-judge panel of Ninth Circuit judges also specifically asked the Proposition 8 proponents – those opposing marriage equality – to explain to the court why the appeal should not be dismissed for a lack of standing.
The standing issue, first raised in court filings by the plaintiffs when opposing the stay in Walker’s court, has been a topic of significant discussion in the past week. In Walker's ruling on Aug. 12 denying the stay, he suggested that proponents likely lacked standing to bring an appeal if none of the named defendants – including California Gov. Arnold Schwarzenegger and Brown – choose to seek an appeal.
After detailing those issues, Walker concluded, “As regards the stay … the uncertainty surrounding proponents’ standing weighs heavily against the likelihood of their success.”
Following the Ninth Circuit’s order on Aug. 16, Jim Finefrock, Brown’s director of communications, told Metro Weekly that the attorney general would not be appealing the decision to grant the stay.
“The stay was reinstituted, and that’s what we have to deal with now,” Finefrock said, adding, “We are evaluating whether we’ll have anything to say about standing in this case.”
In its initial filing before the Ninth Circuit, the attorney general’s office took no position on whether the proponents have standing to bring the appeal.
Ted Olson, who has led the plaintiffs’ case for the American Foundation for Equal Rights (AFER), said in a statement, “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.”
In Walker’s order denying the stay, he found that “proponents fail to satisfy any of the factors necessary to warrant a stay,” which include showing that there is a strong likelihood they will succeed on appeal, that they will be “irreparably injured” if the ruling goes into effect while the decision is being appealed, that others would not be “substantially injure[d]” if there is a stay and that the stay is in the public interest.
Finding that the proponents of the proposition “failed to articulate even one specific harm they may suffer as a consequence of the injunction” of Proposition 8, he found that they are unlikely to succeed on appeal.
The brief order from the Ninth Circuit did not address Walker’s ruling or explain the appellate court’s reasoning for granting the stay.
A spokesman for AFER confirmed to Metro Weekly that the plaintiffs will not be appealing the Ninth Circuit order to the Supreme Court.