Monday, August 16, 2010

Ninth Circuit Stays Perry v. Schwarzenegger, Proposition 8's Unconstitutionality

A panel of the Ninth Circuit. has stayed Judge Walker's decision finding Proposition 8 unconstitutional, thus vacating Walker's decision lifting the district judge's own stay.  In other words, Proposition 8, prohibiting same-sex marriages, is again the law of California.

The very brief opinion states in full:

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.

Recall that the district judge raised the issue of lack of standing by the "proponents."  The Ninth Circuit panel seems to be taking the issue of standing - - - or lack thereof - - - quite seriously. 

RR

http://lawprofessors.typepad.com/conlaw/2010/08/ninth-circuit-stays-perry-v-schwarzenegger-proposition-8s-unconstituionality.html

Current Affairs, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, News, Sexual Orientation, Sexuality, Standing | Permalink

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Comments

My prediction: 9th circuit will dismiss for lack of standing, proponents will appeal to SCOTUS, who will overturn dismissal 5-4, proponents will have their appeal heard by 9th circuit.

Posted by: Herp Derp | Aug 16, 2010 7:55:25 PM

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