Ari Ezra Waldman
Let us hope that the deposit on the floral arrangements is refundable because for now, California will have to wait a little while longer for a second dawn of marriage equality.
As expected, the Ninth Circuit granted a stay – a delay or postponement – of Judge Vaughn Walker’s Aug. 4 order allowing same-sex marriage. This is one of the many procedural hurdles that marriage equality will have to jump before it becomes a reality in the Golden State. But, while we should get our deposits back on any marriages planned for Aug. 18 or later, there is no reason to lose hope.
The Ninth Circuit is fast-tracking the appeal in this case. The three-judge panel should hear arguments in San Francisco in the first week of December. That may sound more like the glacial pace of a snail hitching a ride on the back of a turtle, but in a system where regularly scheduled appeals can take more than a year to be calendared for oral argument, this schedule is Bugs Bunny fast.
The court’s order specifically asked both sides to address the issue of standing.
Standing is a fancy legal word for the right to appeal. And, in this case, there is a substantial question as to whether the Prop. 8 proponents have standing to appeal to the Ninth Circuit.
Normally, the only party that has the right to appeal is the party that was hurt by the lower court’s ruling – namely, when a party has to pay a sum of money or stop violating a law or, in this case, start issuing marriages licenses to same-sex couples.
But, the State of California issues marriage licenses, not a group of anti-gay marriage advocates and citizens. Since Gov. Arnold Schwarzenegger and Attorney General Jerry Brown opposed the stay and do not want to appeal Judge Vaughn Walker’s ruling, the parties left to appeal are those not affected by Judge Walker’s order.
The Ninth Circuit is clearly curious about this problem, as well. The judges are wondering how someone not covered or affected by an order have the right to appeal that order. I am wondering that, too.
Finally, the three-judge panel that issued the stay consisted of one Reagan and two Clinton appointees. Judge Edward Leavy was named to the appellate court by Ronald Reagan in 1987 and is considered by members of the appellate bar to be more moderate than other Reagan appointees. Bill Clinton appointed Michael D. Hawkins and Sidney R. Thomas to the Ninth Circuit and the latter judge was on President Barack Obama’s short list for the Supreme Court seat ultimately taken by Elena Kagan.
This panel, however, may not be the panel of judges that will hear the merits argument in December. It is certainly possible, but unlikely given the random nature of panel assignments and the sheer number of judges in the Ninth Circuit. Regardless of who is on the merits panel, it is hard to predict how political affiliations will affect a decision. After all, Judge Walker was appointed by President Reagan and he issued one of the most sound and well-reasoned opinions in support of marriage equality in this country.
This appeal is just one in a series of steps necessary to win marriage equality rights. While it may be frustrating to wait to exercise our fundamental rights, we are not just in this fight for California.
If this case ended with Judge Walker’s order, we would have marriage equality in California, but it would be of limited precedential weight across the country. Having the imprimatur of an appellate court or, ultimately, the U.S. Supreme Court, will do more to advance the cause of marriage equality than one district court order.
Ari Ezra Waldman is a graduate of Harvard College and Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Waldman is now on the faculty at California Western School of Law in San Diego. His areas of expertise are criminal law, criminal procedure, LGBT law and law and economics. For more information about professor Waldman and his work, visit www.cwsl.edu.