The Ninth Circuit Court of appeals, extended Judge Walker’s stay which was set to expire on Wednesday, August 18th.

Marriage Equality will remain on hold in California, at least until the Ninth Circuit rules on the merits of an appeal of Judge Walker’s ruling which struck down Proposition 8 as unconstitutional.

From the order to extend the stay:

Docket Text:

Filed order (EDWARD LEAVY, MICHAEL DALY HAWKINS and SIDNEY R. THOMAS) Appellants’ motion for a stay of the district court’s order of August 4, 2010 pending appeal is GRANTED. The court sua sponte orders that this appeal be expedited pursuant to Federal Rule of Appellate Procedure 2. The provisions of Ninth Circuit Rule 31-2.2(a) (pertaining to grants of time extensions) shall not apply to this appeal. This appeal shall be calendared during the week of December 6, 2010, at The James R. Browning Courthouse in San Francisco, California. The previously established briefing schedule is vacated. The opening brief is now due September 17, 2010. The answering brief is due October 18, 2010. The reply brief is due November 1, 2010. In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing. See Arizonans For Official English v. Arizona, 520 U.S. 43, 66 (1997). IT IS SO ORDERED.

The Ninth instructed our opponents to demonstrate “why this appeal should not be dismissed for lack of Article III standing.”

Article III standing means the following:



The legal right to initiate a lawsuit. To do so, a person must be sufficiently affected by the matter at hand, and there must be a case or controversy that can be resolved by legal action.There are three requirements for Article III standing: (1) injury in fact, which means an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical; (2) a causal relationship between the injury and the challenged conduct, which means that the injury fairly can be traced to the challenged action of the defendant, and has not resulted from the independent action of some third party not before the court; and (3) a likelihood that the injury will be redressed by a favorable decision, which means that the prospect of obtaining relief from the injury as a result of a favorable ruling is not too speculative.

There remains significant doubt whether our opponents have the legal right to appeal this decision because the State of California chose not too. The Ninth could rule that proponents of proposition 8 do not have standing, and therefore can not appeal.

The Ninth could decide they do have a right to appeal. If they do, our opponents will have to prove that marriage equality causes harm using the “evidence” they presented in the District Court.

It will be enormously difficult for our opponents to overcome that hurdle because they have yet to prove in court, or anywhere else, that marriage equality causes harm to anyone–ever. In fact their only two witnesses conceded to our side that marriage does not cause harm to anyone other than the couples who are denied access to marriage.

Unfortunately thousands of gay and lesbian families in California will have to wait until the appeals process unfolds before they will be granted access to their fundamental right to marry to an adult of their choice.

Fortunately, the Ninth understands the urgency of this case and has expedited the process. For Federal Court, this case is moving extraordinarily quickly. I am extremely optimistic that the expedited process is a good sign for the good guys (that’s us.)

The Ninth may not have the final word though. If the Ninth decides our opponents can appeal, yet they rule in favor of us, the losing side has the right to appeal the Ninth’s decision to the Supreme Court. They could decide to hear the case themselves, or they could let the Ninth Circuit ruling stand.

The Supreme Court remains the most conservative court in generations. There is legitimate concern about bringing this case before the Supreme Court. A best case scenario may simply be a ruling that our opponents have no standing to appeal Judge Walker’s ruling. Doing so would strike down proposition 8, while giving the LGBT community and outstanding case to draw from for future litigation.

On the other hand, it could take at least a decade or more, for this Supreme Court’s make up to change.

As Martin Luther King, Jr. said, “A right delayed is a right denied.” Some of us do not have have a decade or more left on this planet. Some of us literally can not wait to experience the dignity of equal treatment under the law. For them, I hope this case does end up at the Supreme Court, because our fundamental right to equality under the law is legally undeniable. We have waited long enough.