Quick Same-Sex Marriage California Court Challenge Fails
The sponsors of California’s Proposition 8 tried a legal hail Mary and have failed. The SCOTUS Blog:
Supreme Court Justice Anthony M. Kennedy turned down at midday Sunday a request to stop same-sex marriages from occurring in California. Without comment, and without seeking views from the other side, Kennedy rejected a challenge to action by the Ninth Circuit Court on Friday implementing a federal judge’s ruling allowing such marriages. The plea had been made on Saturday by the sponsors of California’s “Proposition 8,” a voter-approved measure that permitted marriage only between a man and a woman.
Last Wednesday, the Supreme Court had ruled that the measure’s backers did not have a legal right to defend the measure in either the Supreme Court or, earlier, in the Ninth Circuit Court. While the Supreme Court considered that case, the 2010 decision by a federal judge in San Francisco striking down “Proposition 8? had been on hold. It was that hold (or “stay”) that the three-judge Circuit Court panel lifted on Friday. Very soon after that, gay and lesbian couples started getting married in ceremonies across the state. Thousands of such couples have now obtained marriage licenses from officials in the state.
Since Justice Kennedy offered no explanation for denying an application claiming that the Ninth Circuit panel had no authority to lift its stay, there is no way to know what legal rationale he had used. It could have been that the sponsors of the measure lacked a legal right to pursue their challenge further, that even if they had such a right it was without legal merit, that the lower court did have the authority to decide for itself when to lift the stay, or perhaps that events had just moved too rapidly in the wake of the Supreme Court ruling that it would be inappropriate to try to roll them back.
Although attorneys for the ballot measure’s sponsors have been creative in finding new ways to try to press the challenge, the brief action by Kennedy on Sunday may have removed the final barrier to the full achievement of marriage rights for gays and lesbians in the nation’s most populous state.
This was truly a long shot in legal terms. In terms of p.r., the backers of Proposition 8 showed their supporters that they did not intend to give up and also served notice to those who successfully clamored to nix Proposition 8 that their battle is not over. As long as there are legal channels and legal possibilities, same sex marriage will be challenged and tested even though Ted Olson, the George W. Bush administration official who helped defeat Poposition 8, predicts his party is moving towards embracing the right of same-sex couples to wed. If so, some Republicans may not go quietly — or they may go.
As I noted yesterday, there was virtually no chance that Kennedy would grant this request to begin with, so there’s no surprise here. Theoretically, the Prop. 8 proponents could file a Motion to Reconsider, but there’s really no chance that such a motion would have been granted. This case is, effectively, over.
What angered Prop 8 backers in this fight was the appeals court’s bypassing a traditional waiting period. Typically, 25 days must pass before Supreme Court judgments become final, to give the losing side an opportunity to ask for a rehearing. Such rehearing requests are almost always denied, but a three-judge panel of the 9th Circuit decided to act swiftly, without waiting for a certified copy of Wednesday’s ruling to be issued.
“Everyone on all sides of the marriage debate should agree that the legal process must be followed,” said Austin Nimocks, senior counsel for Alliance Defending Freedom, on Sunday. “The 9th Circuit has failed to abide by its own word that the stay would remain in place until final disposition by the Supreme Court. When courts act contrary to their own statements, the public’s confidence in the justice system is undermined.”
The Supreme Court’s 5-4 opinion last week avoided, for now, a sweeping conclusion on whether same-sex marriage is a constitutional “equal protection” right that would apply to all states. But it had the effect of clearing the way for the nation’s largest state to move ahead. Thirteen states have now approved of same-sex marriage. Delaware’s law takes effect Monday.