Judge Vaughn Walker ruled today in Perry v. Schwarzenegger that the proponents of Prop 8 failed to satisfy the standards for staying his decision that Prop 8 is unconstitutional. Today's ruling emphasized that the proponents may not have standing to appeal without one of the original state defendants - the governor and the attorney general - joining the request (which will not happen). Judge Walker also relied on the positions of both those state officials that there would be no harm from allowing same-sex marriages to begin again immediately. Lastly, Walker found that the public interest favors resumption of marriages.
However, he delayed implementation of this order until 5 pm on August 18, so that the Prop 8 supporters can attempt to get a stay from the Court of Appeals or, failing that, from the Supreme Court.
“None of the factors the court weighs in considering a motion to stay favors granting a stay. Accordingly, proponents’ motion for a stay is DENIED. The clerk is DIRECTED to enter judgment forthwith. That judgment shall be STAYED until August 18, 2010 at 5 PM PDT at which time defendants and all persons under their control or supervision shall cease to apply or enforce Proposition 8.”
If the Prop 8 proponents do go to the Supreme Court, the question would be handled initially by Justice Kennedy, the all-important swing justice, who is the designated Justice to receive emergency appeals from the Ninth Circuit. Justice Kennedy could either rule himself or ask the full Court to consider the question; if he rules, then either side could seek review by the entire Court.
From Calitics a description of the procedures at the Ninth Circuit:
- Once the Prop 8 Proponents file their Motion to Stay with the Ninth Circuit, opposition papers are due ten days later and a response to the opposition is due seven days after that. That being said, the Court has the power to shorten time for the opposition and the reply papers to be filed.
- After the motion is fully briefed, the Court usually makes it decision based on the papers alone, without having a hearing. But the Court may schedule a hearing if it so desires. The Motion to Stay must be decided by a three-judge "Motions Panel," but as I will discuss below, a single judge on the Motions Panel may decide to issue a temporary stay while the full panel makes its decision on the Motion.
- For August, the Ninth Circuit Motions Panel is composed of Judge Edward Leavey (a Reagan Appointee from Oregon), Judge Michael Hawkins (a Clinton Appointee from Arizona), and Judge Sidney Thomas (a Clinton Appointee from Montana). For what it's worth, Judge Thomas interviewed with President Obama and VP Biden to replace Justice Stevens on the Supreme Court and he was rumored to be on the "short list" for the appointment; he may still be on the list for future vacancies.
- The Motions Panel decides only the Motion to Stay, not the merits of the appeal. The merits of the appeal will be decided by a panel of three judges who will be assigned shortly before the hearing (months away).
- In addition to filing an ordinary Motion to Stay with the Ninth Circuit, the Prop 8 Proponents also will file an Emergency Motion requesting a temporary stay. To do this, they must show that "to avoid irreparable harm relief is needed in less than 21-days."
- When an Emergency Motion is filed, it is immediately referred to the lead judge of the Motions Panel. If the lead judge is unavailable, the Emergency Motion is referred to the second judge and then the third judge of the Motions Panel. The judge to whom it is referred may either grant temporary relief or convene the Motions Panel (usually by telephone) to decide the motion. My guess is that in a case as newsworthy as this, the lead judge would prefer to convene the entire panel rather than make the decision himself. In any event, there could be a decision on the Emergency Motion within hours after the motion is filed, but it's more likley that it will take a day or two for the Judge(s) to rule.