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No California same-sex weddings for now

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Sadly, the Ninth Circuit Court of Appeals has put a stay on Judge Walker's ruling in the Prop 8 case.

Many of us had hoped that the court would decide not to do that, which would have meant weddings could start two days from now.

The two-paragraph stay order says that the appeal, on an expedited schedule, will be heard in early December, which presumably means there won't be a decision 'til sometime in 2011. (And then, of course, that decision will be appealed to the Supreme Court.)

One good thing about this latest decision is the final sentence:

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).

For whose who don't know, the basic idea of “standing” is that someone who isn't directly harmed by something can't challenge it in Federal court. Here's an explanation of the background from a law professor's piece in the LA Times yesterday:

For decades, conservative justices on the Supreme Court have ruled to limit who has standing to bring a claim in federal court. In cases involving civil rights, environmental protection and the separation of church and state, the court has ordered that cases be dismissed because the party pursuing the case had no legal standing to do so.

Of course, Gov. Schwarzenegger and Attorney General Jerry Brown have standing; they could appeal Walker's ruling. But they've made clear that they have no intention of doing so.

During the trial, when the Governor and AG wouldn't defend Prop 8, the Prop 8 supporters stepped in as “defendant-intervenors”; they acted as the defendants.

But now Walker has pointed out that there's doubt as to whether they have standing, since they haven't shown that they're harmed by his ruling.

So if the Prop 8 supporters can't convince the Ninth Circuit Court of Appeals in December that they have standing, then as I understand it, the case is over. The appeal won't be able to proceed, and Judge Walker's ruling will stand.

(I'm not sure whether it's possible to appeal a lack-of-standing decision to the Supreme Court or not.)

But that won't be decided until December. Until then, we have to just wait.

I'm disappointed that we won't be seeing weddings on Wednesday. But I'm hoping the delay turns out to be only a few months.

(I know, I know, this is the second time this evening that I've violated my stated intent to stay off the Net this week. But we knew the Ninth was going to rule on this before Wednesday afternoon, and so this was one of my main known-ahead-of-time exceptions. We'll see if I can do a better job of not posting tomorrow.) (Thanks to Jay H for emailing me about the ruling!)

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(I'm not sure whether it's possible to appeal a lack-of-standing decision to the Supreme Court or not.)

I asked a lawyer friend of mine: yes, a lack-of-standing ruling can be appealed.


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