Theodore J. Boutrous Jr., one of the lawyers who challenged Proposition 8, said that he had just received word from the court Sunday morning that Justice Anthony M. Kennedy denied a request by ProtectMarriage, the sponsors of Proposition 8, to halt the marriages.
Boutrous said that Kennedy, who handles petitions from the Western states, did not comment on the decision.
The U.S. 9th Circuit Court of Appeals issued an order late Friday that allowed gay marriages to resume in California, a step that ProtectMarriage said was premature and in violation of procedural rules.
Kennedy wrote Wednesday's Supreme Court ruling that required the federal government to recognize same-sex marriages in the Defense of Marriage Act case. He dissented in the Proposition 8 decision, however, which said that ProtectMarriage and other initiative sponsors could not stand in the place of state officials to defend the measure in federal court.
The 9th Circuit normally waits 25 days before acting on a case just decided by the Supreme Court. But in a surprise move, a three-judge panel that included liberal jurist Stephen Reinhardt lifted a hold it had placed on a 2010 injunction ordering state officials to stop enforcing the gay marriage ban.
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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.
