In a move as desperate as it is pathetic, the religious right asked the Supreme Court to stop California’s gay marriages that began anew last night when the appellate court lifted it stay on an earlier decision finding Proposition 8 unconstitutional.
The Supreme Court ruled this past Wednesday that the religious right plaintiffs did not have standing to appeal the case, and thus the initial ruling, finding Prop 8 unconstitutional, stands. The court also struck down the section of the anti-gay Defense of Marriage Act that forbade the federal government from providing federal marriage benefits to legally-wed gay couples. Those benefits have now begun.
But, the religious right is now arguing that the Supreme Courts permits losers in a dispute before the court 25 days to petition the court to reconsider its decision. The religious right is arguing that it still has 22 days left, so marriages in California cannot begin, they say, until the religious right gets a chance to file its petition. They want the Supreme Court to, in essence, stop the 9th circuit from lifting its stay until 25 days have passed, or the religious right files its petition for reconsideration fo the decision.
So far, legal experts don’t think the religious right has a chance, but there still is the possibility that the court would delay such marriages on the technicality that the religious right still has 22 days to file it petition.
According to Bryan H. Wildenthal, professor of law at Thomas jefferson School of Law in San Diego, California. Wildenthal takes the approach that we should, to paraphrase Ronald Reagan, trust but verify that the religious right doesn’t have a chance:
I’m still laughing (I’m the “trying not to bust a gut” correspondent), but you are correct, that the notorious “gay exception” in all things legal (which has bitten us all in the ass before) must be watched-out-for.
This is the same U.S. Supreme Court that bizarrely intervened in a district-court-level trial management issue of how/whether to broadcast trial proceedings in this very same Prop 8 litigation (a relatively trivial trial management issue totally unworthy of Supreme Court attention, and which the Supreme Court would never normally have concerned itself with).
So, I would say, celebrate as the marriages continue, but we cannot rest entirely easily until the Supreme Court has denied (or time for motion has expired) on a motion to reconsider the Prop 8 decision.
Kate Kendall, executive director of the National Center for Lesbian Rights pretty much concurred with Windenthal:
This will go nowhere. We are done fighting over marriage in California. The Supreme Court is done dealing with marriage in California. But even I am finding this new reality somewhat disorienting, while also delightful and exhilarating. Our opponents are disoriented and seething. They have been in charge and now their entire reason for existing has collapsed. Ding, dong…
Scotusblog, a legal blog looked to by many people as an authority on the Supreme Court, also agrees:
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….
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.
I had considered that last point too, though it’s a bit of a Catch-22. The religious right is appealing the ruling that they didn’t have standing. I guess the question is whether the court can now say, again, “you don’t have standing to even ask us to reconsider.”
What this boils down to is pettiness on the part of the religious right. They lost this past week in a big way. And now they want to do whatever they can to harm gay couples, even if only for a few weeks.