UPDATE 8:55 p.m.  The lawyers who won the challenge to Proposition 8 in District Court do not plan to ask the Supreme Court to lift the stay issued by the Ninth Circuit. One of those attorneys, Theodore Boutrous, said in a statement: ”We are gratified that the Ninth Circuit has recognized the importance and pressing nature of this case by issuing this extremely expedited briefing schedule.  This approach is one that we proposed as an alternative if the Court decided to grant a stay.  As Chief Judge Walker found, Proposition 8 harms gay and lesbian citizens each day it remains on the books.   We look forward to moving quickly to brief and argue the merits of this case.”  Officials in San Francisco and for the state of California also do not plan to go to the Supreme Court at this point, it is understood.

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The Ninth Circuit Court, acting swiftly on the hotly controversial issue of same-sex marriages in California, on Monday afternoon delayed for at least four months any grant of licenses to gay couples to wed in the state.  Under a two-page order, even a hearing will not be held until early December, meaning that any ruling would be unlikely much before the end of the year, if then.

The three-judge motions panel made no ruling on any of the issues at stake, including whether the proponents of Proposition 8 have any right to pursue their appeal challenging U.S. District Judge Vaughn R. Walker’s August 4 decision striking down the Proposition.  The panel, however, flagged that issue as one that the backers of the ban must discuss in their opening brief a month from now.

Without Monday’s order, Judge Walker’s ruling would have gone into effect at 5 p.m. (Pacific time) on Wednesday; at that point, state officials would have been barred by court order from enforcing the ban.   With the delay, Proposition 8′s ban remains intact, and no marriage license office in the state may issue such documents.

The panel provided no explanation for its postponement.  What its action  meant, most immediately, is that the appeal by the backers of Proposition 8 will go forward in the Circuit Court — at least ;through the briefing schedule, and the oral argument set for the week of Dec. 6.   That schedule could delay at least for several weeks in the new year any chance that the Supreme Court would be faced with the issue, at least on the merits of Judge Walker’s ruling.

It does not appear that the same-sex couples who filed the federal constitutional challenge to the ban would seek now to persuade the Supreme Court to get involved at this stage, over the question of postponement.  In fact, the couples’ lawyers, while asking the Circuit Court not to stay Judge Walker’s order, had in fact asked as an alternative that — if a stay were issued — the case be put on a fast schedule for considering the merits of the appeal.  That is what the panel did.  In fact, the panel’s schedule extended by only a few days the timetable those lawyers had suggested for each step in the briefing schedule.

The panel, though, put the oral argument date at least three weeks later than the Nov. 15 date the couples’ lawyers had recommended.    The judges who will sit on the panel to consider the merits of the case — and the “standing” issue — will not be known until later.  There is no assurance that the judges on the motions panel will make up the merits bench.

The panel ordered that the appeal of Judge Walker’s order be  expedited, with the backers of the ban to file their opening brief Sept. 17, the opponents of the ban to file by Oct. 18, and the backers’ reply to be filed by Nov. 1.  The parties will then have more than a month to prepare for oral argument.

Pointedly, after laying out that schedule, Monday’s order declared: “In addition to any issues appellants [Prop. 8 supporters] 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.”

The only legal citaton that the panel summoned to support that part of the order was a 1997 Supreme Court decision, Arizonans For Official English v. Arizona — a decision in which the Justices unanimously raised “grave doubts” about whether the sponsors of a state ballot initiative could ever pursue an appeal of a ruling striking down such a measure, if state officials chose not to appeal.  The Justices did not decide the Arizona case on that basis, however, so the force of the precedent is not entirely clear.  Judge Walker treated it as a strong indication that the Proposition 8 backers had no “standing” to appeal in the absence of an appeal by state officials.  No such appeal will be pursued by the governor or other state officers, it is now clear.

It is uncertain whether the Circuit Court panel, in ordering only the proponents of the ban to discuss the basis for their claim to “standing,” meant that the panel could act on that question just as soon as that particular brief has been filed.   The panel could have directed both sides to address the “standing” issue, but chose not to do so; the reasons were not given.  The panel, though, does know — from filings already made — that the opponents of the ban do argue that the porponents do not have the right to pursue the appeal in the absence of a state appeal.

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