Proposition 8 Defenders File Motion To Delay California Gay Marriages

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.


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:

Hollisngsworth v. Perry Emergency Motion by dmataconis

FILED UNDER: Law and the Courts, , , , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. Tran says:

    If the least senior justice gets two circuits, that makes 8×1 +1×2 = 10 circuits, what about number 11?

  2. Geez, you’re right……

    It must be the two least senior Justices then, which would mean Sotomayor is also pulling double duty. I’ll look it up and update the post tomorrow. It’s Saturday and time for other things.

  3. PJ says:

    @Doug Mataconis:

    From Wikipedia:

    District of Columbia Circuit Chief Justice Roberts
    First Circuit Justice Breyer
    Second Circuit Justice Ginsburg
    Third Circuit Justice Alito
    Fourth Circuit Chief Justice Roberts
    Fifth Circuit Justice Scalia
    Sixth Circuit Justice Kagan
    Seventh Circuit Justice Kagan
    Eighth Circuit Justice Alito
    Ninth Circuit Justice Kennedy
    Tenth Circuit Justice Sotomayor
    Eleventh Circuit Justice Thomas
    Federal Circuit Chief Justice Roberts

    So, Kagan and Alito get two each and Roberts gets one and also Federal and DC.

  4. al-Ameda says:

    So, exactly what is the emergency? Is it based on the threat that gay marriages present to straight sex marriages? Or is it that they want to preserve a system that does not provide for equal protection under the law for gay partners?

  5. HarvardLaw92 says:

    I’m guessing these folks didn’t get the message:

    You do not have standing in this matter. Sheesh …

  6. PJ says:


    So, exactly what is the emergency?

    If enough gays marry in California, God will smite the state and hit it with a massive earthquake.

  7. al-Ameda says:


    If enough gays marry in California, God will smite the state and hit it with a massive earthquake.

    Which is fine with me because all those flat earther religious conservatives and so-called moralists will fall into the sea.

  8. Isn’t filing motions solely for the purpose of delaying judgment in a case generally considered unethical?

  9. rudderpedals says:

    I finally got scribd to work. The contempt towards the Circuit Court was forehead-vein-pulsing obvious wasn’t it?

    Did the 9th Circuit say it was dissolving its stay in the manner of a comfort order, and state something reasonable like it was a legal nullity and void ab initio for lack of jurisdiction and issued to reassure, or was it just tossed out there from the bench?

  10. Andre Kenji says:

    Seriously, if you saw the people demonstrating against gay marriage in California, you saw less people than people commenting on this blog.

  11. Paul Hooson says:

    Those Prop 8 defenders are living less and less in world of reality here. The U.S. Supreme Court turned them down before because they failed to prove that Gay marriage caused them any personal harm or damage and that a position that something just makes them mad is no sound legal basis to bring something to court if you cannot prove harm of some sort to yourself. A political realist would accept defeat, and understand the legal basis for their loss in court and move on….not these folks. They don’t live in political reality here. – A snowball in Hell stands a better chance than some emergency legal action in court. – Those who advocate for Gay marriage can say that their civil rights to equal treatment under the law are violated, whereas those in favor of prop 8 can only claim, “hey something makes us mad, so this is an emergency”. – Who wins that court battle is pretty clear.

  12. michael reynolds says:

    Emergency! People are getting married.

    Jesus Christ Republicans are aszholes. Just pure, distilled essence of aszhole.

  13. HarvardLaw92 says:


    Did the 9th Circuit say it was dissolving its stay in the manner of a comfort order, and state something reasonable like it was a legal nullity and void ab initio for lack of jurisdiction and issued to reassure, or was it just tossed out there from the bench?

    Simple one sentence order. “The stay in the above matter is dissolved immediately.”

  14. Just Me says:

    This is why I think a referendum to repeal prop 8 would be the best move.

    As long as prop 8 is in the California constitution (no matter what courts say) opponents of SSM are going to continue to file suit. Even with a new referendum loss they may not drop it but at least a new referendum repealing prop 8 would mean the elected citizens voted.

  15. rudderpedals says:

    @HarvardLaw92: Thank you

  16. David in KC says:

    @Just Me: if you don’t mind, I’d prefer if my civil rights were not subject to a vote.