UPDATE: The Supreme Court rejected an emergency request to stop same-sex
marriages in California, a lawyer for the gay couples who sued said
Sunday.
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.
-------------------------
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.
