In a disappointing, but not all that surprising move, the 9th Circuit Court of Appeal granted a stay in the Proposition 8 order pending appeal of that order. The two-page ordered agreed to expedite the briefing and argument schedule and will hear the case during the week of December 6th. Briefs from the parties are due to the court by Nov. 1.
The order said little else, except that the parties were to brief the issue of whether opponents of same-sex marriage have standing under Article III of the Constitution to even appeal the district court order. The request could suggest the court is skeptical of same-sex marriage opponents’ right to even purse the matter over state officials who declined to appeal the district court order. Federal case law is settled, in the form of a unanimous Supreme Court ruling, that private parties cannot “step in” for the state in defending ballot initiatives.
The move by the 9th Circuit in no way should be read as a step back in the push for marriage equality and, much like the process of having a trial on the merits of the initiative, a necessary part of solidifying the case against hate campaigns like Proposition 8. Furthermore, the order shows that the court recognizes the gravity of the issues before it and seeks to strike of the necessary balance between political expediency and careful constitutional consideration.
So for now no same-sex marriages will be performed in the state, and, given the nature of the legal battle ahead, it is likely that none will be performed for some time. The reality is this case is in the appellate pipeline for a while, perhaps even long enough to see a competing ballot initiative granting same-sex couples the right to marry succeed. Needless to say, it’s far from over.
photo courtesy of david_shankbone via Flickr