Perry, Prop 8 and the week (or more) ahead

by on August 16, 2010  •  In Constitutional law, Marriage

I'm just back from a weekend of travel, during which the whole world has discovered the importance of the standing issue that first surfaced in the plaintiffs' opposition to the stay being sought by the Prop 8 proponents in the Perry case, and on which Judge Walker placed primary reliance in his denial of the initial motion for a stay. The final briefs on the stay issue have just been filed this morning at the Ninth Circuit, which will rule by early Wednesday at the latest, since weddings are scheduled to begin on Wednesday the 18th at 5 pm (PDT).

If the Ninth Circuit denies the motion for a stay, my hunch is that they will extend the temporary stay until the proponents can get an order from the Supreme Court.  The temperature at the high court on the issue of gay marriage may be taken as early as the end of this week, although the Court's "opinion" could also be a one-sentence order and in any event will only determine the question of the stay.

Meanwhile, there is the equivalent of a quickie law school course on standing available on the web. The NY Times quotes UC-Irvine Dean Erwin Chemerinsky as asking the basic question: how can a party that is not covered by an injunction have standing to appeal the injunction? Lyle Denniston at SCOTUSblog has explained the basics and also summarized the case law. Michael Dorf thinks that Prop 8's defenders should have standing, although he agrees with Judge Walker on the merits; he's also worried about backlash if Prop 8 is invalidated with no appellate-level consideration. Howard Wasserman argues that there is no problem with a party qualifying as an intervenor of right but not having standing to appeal; he calls intervenors "amici on steroids." How ironic that the first new law to be made from the Perry case will concern standing, not equality.

As the roller coaster rides on this week (and perhaps longer, if temporary stays get extended), keep in mind that whether couples start marrying soon or not, the appeal will continue. The rounds that we always anticipated will play out: the full litigation at all levels of the motion for a stay; the appeal on the merits (including final resolution of the standing question) at the Ninth Circuit; and at least the seeking of review by the Supreme Court.


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