Last Call Before The Inevitability

The Prop 8 defendants shot down Wednesday are still trying to piss in the punchbowl, it seems.  They have filed an emergency petition with Justice Kennedy to stop same-sex marriages, just to piss everyone off.

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.

And this has apparently pissed off the God botherers.

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.

In other words, they're just being douchebags.  Here's hoping Justice Kennedy tells them to screw off.