Same-sex marriages will not proceed in California this week, per an order this afternoon from the U.S. Ninth Circuit Court of Appeals that will not be appealed by the plaintiffs or California Attorney General Jerry Brown in the case challenging Proposition 8. The court also, however, set an expedited appellate schedule that will lead to the oral argument in the case being heard the first full week in December.
The court granted the stay of U.S. District Court Judge Vaughn Walker's August 4 ruling striking down Proposition 8 that appellants had sought. Additionally, the court set the briefing schedule for the appeal and specifically asked the proponents 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 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.
Jim Finefrock, Brown's director of communications, told Metro Weekly on Monday evening 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, 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."
A spokesman for AFER confirmed to Metro Weekly that they will not be appealing the Ninth Circuit's decision to the Supreme Court.
The Ninth Circuit's order:
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.
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