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.
The parties could ask the Supreme Court to expedite the release of the judgment. That is in fact what occurred last week in the “Baby Girl” Native American adoption case. After a request by the petitioner, the Court ordered the mandate issued in 7 days, rather than the usual 25.
Absent such a request, most observers expected that same-sex marriage in California (in the places in the State it did become available) would not begin again for roughly a month. Even if the court of appeals was not required as a matter of law to wait, that appeared to be the more measured and prudent course. But the Ninth Circuit acted more quickly, lifting the stay before the Supreme Court’s ruling became effective.
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 starting 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.
Although the application’s prospects may not be great, the stakes are unquestionably high for marriages that would occur over the next month. By lifting the stay, the court of appeals allowed an injunction against Proposition 8 to take effect. Under an unusual provision of the California Constitution, without the injunction, state officials are required to apply Proposition 8 and thus not to marry same-sex couples.
It is true that the Ninth Circuit’s decision to lift its own stay so quickly may not further endear the members of that court to the Justices of the Supreme Court. The Justices place great value on permitting ordinary legal processes to run their course. But it seems unlikely that the Supreme Court will see the situation as sufficiently urgent to require its intervention now. In perhaps a sign of that understanding, the firm of the proponents’ principal Supreme Court counsel — Cooper & Kirk — did not place its name on the emergency application.