Prop 8 to SCOTUS?

Since the Ninth Circuit Court of Appeals is the only District or Appeals Court left in the US that is not packed with extreme right wing ideologues, it is unlikely to issue a stay aqgainst the resumption of gay marriage in California.  What next?

In all of the legal maneuvering surrounding the challenge in federal court to Proposition 8, California’s 2008 voter-approved ban on same-sex marriage, one thing has seemed all but certain: the case would eventually head to the Supreme Court.

But that trip could come — in a way — as soon as this week, as proponents of the ban seek to prevent a resumption of same-sex marriages. Judge Vaughn R. Walker of Federal District Court, who this month ruled Proposition 8 to be unconstitutional, lifted a temporary stay on his decision on Thursday, but allowed six days for a three-judge panel of the United States Court of Appeals for the Ninth Circuit to review it.

Some legal experts are skeptical of whether the Ninth Circuit panel — made up of two Democratic appointees and a moderate Republican — will intervene. And so it is that proponents may find themselves heading to the Supreme Court to try to obtain an emergency stay.

It is at that level that proponents, who are on a legal losing streak, may find some relief, experts say.

Richard L. Hasen, a professor at Loyola Law School in Los Angeles who has commented extensively on the Proposition 8 trial, said the Supreme Court had been somewhat dismissive of decisions from the Ninth Circuit, particularly on “hot-button issues.”

“It’s really hard to predict what the court is going to do, but it seems in those cases that the Supreme Court is less deferential,” Mr. Hasen said.

If proponents did go to the Supreme Court, Mr. Hasen said, the justices would not be ruling on the facts or findings in the case, but on whether there was a potential harm being caused by Judge Walker’s lifting of the stay.

“A decision granting a stay would not necessarily portend a reversal on merits,” Mr. Hasen said. “It just preserves the status quo” that no same-sex marriages could be performed in California.

Going to the Supreme Court for a stay is not rare: it occurred in the Proposition 8 case in January, when supporters petitioned the court to prevent the trial from being broadcast online. That attempt was successful, with the court voting to ban streaming video from Judge Walker’s courtroom.

In trying to prevent same-sex marriages, however, proponents may have another hurdle, namely convincing the Circuit Court or the Supreme Court that it is their battle to fight. That is because both Gov. Arnold Schwarzenegger and State Attorney General Jerry Brown — charged with upholding the state’s laws and named as defendants in the case — have repeatedly voiced opposition to Proposition 8 and have shown no interest in defending it.

“How can someone who is not covered by an injunction seek a stay for the injunction?” said Erwin Chemerinsky, the founding dean of the law school at the University of California, Irvine, who applauded Judge Walker’s decision. “It’s just such an unusual situation to be challenging the law and not have the state defending it.”

The proponents of Proposition 8 — including the organization known as Protectmarriage.com [bigots delinked], which backed the ballot measure — do have status as defendant-interveners in the case. And in an appeal to the Ninth Circuit filed on Thursday, lawyers for the defendant-interveners said they had legal standing because of “their own particularized interest in defending an initiative they have successfully sponsored.”

“California courts have repeatedly allowed proponents to intervene to defend initiatives they have sponsored,” the lawyers wrote.

That said, the conservatives on the current Supreme Court — considered to be in the majority — “have always been the most restrictive about standing,” Mr. Chemerinsky said.

“And that then makes it hard for these conservative justices, however much they disagree with Judge Walker, to find standing,” he said.

He added, “The irony here is that a doctrine that the conservatives have developed over decades restricting standing in federal cases could now be used to end the debate over Prop 8.”

Judge Walker himself addressed the issue of standing in his opinion on Thursday when he denied a request from the Proposition 8 proponents for a stay of his initial decision, issued on Aug. 4, that found the ban unconstitutional. While saying that the proponents had “organized the successful campaign for Proposition 8,” he countered that it was not their job to enforce it.

“They are not (and cannot be) responsible for the application or regulation of California marriage law,” he wrote… [emphasis added]

Inserted from <NY Times>

I first became aware of the issue of standing in this case, when Nameless brought it up with supporting links in a comment a while back, for which I thank him (her?).  Since then I have researched the matter and agree.  The proponent hate mavens have no standing in this case.  Personally, I wish they did, because Walker’s decision is not only superbly crafted, but also, based in significant part on Justice Kennedy’s precedents.  Thus, the swing vote on SCOTUS cannot easily overturn Walker’s decision without contradicting himself in the process.  I therefore predict that SCOTUS will not hear the case itself, because the fascist four, Roberts, Alito, Scalia, and Thomas, don’t want to be outvoted.  They would prefer to wait and hope that a Republican wins the Presidency in 2012, as the two most liberal Justices will be next to retire.  If the fascist four become five, gay marriage, reproductive rights, human rights, in fact, all rights except corporate rights will be in the toilet.  However, SCOTUS could conceivably rule that the proponents have standing where the stay is concerned only.  Such a ruling would be completely irrational, not to mention, unconstitutional.  But Citizens United proved that neither rational thought nor the Constitution matter to them.  So the fate of the stay remains a mystery.