Going down fighting: Prop 8 backers beg SCOTUS to vacate 9th Circuit’s lift of stay 6/30/13

usscourtEven while losing at every stage in their court battles, Protect Marriage and Alliance Defending Freedom lawyers have filed an emergency request with Supreme Court Justice Anthony Kennedy.  In the filing, they ask for an order vacating the 9th Circuit Court of Appeal’s lifting of that court’s stay on it’s ruling.

The 9th Circuit Court on Friday issued a one sentence ruling, lifting the stay that had prevented marriage equality from becoming the law of the land in California.  Before that ruling, most observers had assumed the stay would remain in effect for about 25 days, when the SCOTUS would then transmit a formal order to the 9th Circuit Court.  The 9th Circuit surprised nearly everyone after California Attorney General Kamal Harris contacted it and urged immediate action.  Stating she felt the Court had authority to do so, Harris requested the Court act now rather than later.  The Court agreed.  Once news began spreading about the lifting of the stay, marriages of gay couples resumed across California.  San Francisco and Los Angeles, along with other counties whose clerk offices were still open at the time, began issuing licenses immediately, and marriages were performed.  The couples who sued to overrule Prop 8 were the first ones married in San Francisco and Los Angeles.

Lawyers fighting Prop 8 have filed an emergency request to halt the 9th Circuit Court’s order.  In this action, they are in the unique position of demanding the Supreme Court order the lower court to act on this case, after they have ruled that Court had no jurisdiction to act!  The Supreme Court’s order says the 9th Circuit Court of Appeals had no jurisdiction to hear the case, because the proponents had no standing in Federal Court to bring action.  Therefore, the Supreme Court ruled, the 9th’s rulings had no standing in law.  How do these lawyers expect to win an appeal demanding the reinstatement of a stay the Supreme Court has ruled had no legal standing?

Obviously, I’m not a lawyer, and especially not one qualified to address the Supreme Court!  But it sure seems like an act of spiteful desperation that Prop 8 proponents would file such a request.  (one report notes that it’s only the lawyers themselves that are filing, and not the law firm that they work for)  Their technical reason for the emergency appeal is that the 9th Circuit Court initially put it’s stay in effect until the Supreme Court’s decision, either to hear the case or to decline it, was final.  They are saying that does not occur until about 25 days after the Court posts it’s decision and transmits a formal notice to the Circuit Court.  The waiting period is to allow the losing side to request a re-hearing from the Supreme Court.  That rarely, if ever, happens, but the rules, apparently, do exist.  The question now is do those rules have the force of law, or can the Court, like the legislative branch, set the rules aside and conduct it’s business as it sees fit?  I’m suspecting it’s the latter case, and that Justice Kennedy will deny the emergency request.

In the end, Proposition 8 is dead.  Attempts to delay marriage equality in California are merely spite and bigotry trying to hide behind “process” and “following the rules”.  Saying the Supreme Court’s ruling can’t be law until a clock runs out, and that a stay ruled invalid must remain in force until then is simply animus directed at the gay community.  They might as well just cross their arms and hold their breath until they turn blue in the face.  They’ve lost, they’ve lost big, and this is childish foot-stomping and pouting.

For an excellent analysis of the situation, see this post by SCOTUSblog.

UPDATE: Sunday, 6/30/13 1:30 pm

Supreme Court Justice Anthony Kennedy today denied without comment the appeal by proponents of Proposition 8.  The court will not hear any further appeals of this case.  California may proceed with marriage equality.  SCOTUSblog explains.

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