The proponents of California’s Proposition 8, just over 72 hours away from their loss in Court, have filed an emergency motion to stay the marriages that have resumed in California in the wake of the Supreme Court’s decision:
Attorneys for the parties who sought to defend Proposition 8 in federal court have filed an emergency motion in the Supreme Court seeking to block same-sex marriages from proceeding in California. The filing (via Jess Bravin) is available here.
The application was submitted to Justice Kennedy, who is the Circuit Justice with responsibility for the Ninth Circuit Court of Appeals. Its theory is straightforward. Same-sex marriage in California had been blocked by a stay imposed by the Ninth Circuit Court of Appeals on federal judge Vaughn Walker’s ruling that Proposition 8 is unconstitutional. That stay, the court of appeals had stated, would “continue until final disposition by the Supreme Court.”
The application argues that the Supreme Court’s ruling in the Proposition 8 case is not yet “final,” so the stay must remain in place. The Supreme Court ordinarily does not issue its formally binding ruling – known as the ”judgment” – in a case from a federal court of appeals until 25 days after it releases its “opinion.” Because the Court issued its opinion in the Proposition 8 case on June 26, it would by default not issue the judgment until Monday, July 22. (The 25th day is July 21, a Sunday.) The principal point of that delay is to permit the losing party to prepare and submit a petition for rehearing to the Justices, though such petitions are as a practical matter never granted.
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Whether the emergency request to Justice Kennedy can succeed is unclear. But it is unlikely. As a formal matter, the Ninth Circuit did not put the Supreme Court’s ruling in the Proposition 8 case into effect prematurely. The Supreme Court held that the proponents of Proposition 8 could not file appeals in federal court. That ruling says nothing about imposing or lifting a stay on same-sex marriage. The court of appeals likely has the authority to act with respect to its own previously entered stay, which is a form of controlling its own docket. Although the court of appeals had previously stated that they stay would remain in effect until the Supreme Court’s ruling was final, it presumably can change its mind.
Put another way, before the Supreme Court issued its judgment the Ninth Circuit could not issue a new substantive ruling on Proposition 8-s constitutionality or the standing of the parties to appeal. The court of appeals lacked jurisdiction over those issues while the case was in the Supreme Court. But I am not aware of authority for the proposition that the court of appeals lacked the power to modify its own stay.
Also important, as a practical matter, an order from the Supreme Court temporarily barring same-sex marriage in California would seem to have little practical effect other than to delay the inevitable. And it could call into question the few marriages already conducted late yesterday.
A further complication is that the Supreme Court has just ruled that the parties making emergency application — the proponents of Proposition 8 — have no legal “standing” to participate in the case in the first place. So the case should not have been in the court of appeals to be stayed. And it is unclear whether the proponents have any right to seek any relief.
Of course, the Supreme Court could now enter a stay of its own. But for the same reasons, that is unlikely
That comes from SCOTUSBlog’s Tom Goldstein, and he’s correct about how Justice Kennedy is likely to deal with this matter.1 Indeed, even though Justice Kennedy was in the minority in the Hollingsworth case, he’s not going to handle this matter any differently than if it had gone to Chief Justice Roberts, who wrote the majority opinion in that case.
1 Each Supreme Court Justice is assigned a Judicial Circuit for which they are responsible for dealing with motions and other matters when they arise out of cases pending there, most commonly this is seen in death penalty cases but it arises in other cases as well from time to time. Since their are 9 Justices and 11 Circuits, the least senior Justice, currently Elena Kagan, is given responsibility for matters arising out of two Circuits. Justice Kennedy has had responsibility for the 9th Circuit for the balance of his time on the Court. Update In the comments, PJ clarifies the Circuit assignments for the various Supreme Court Justices
Update: The motion has been denied.
Here’s the Motion:
