Monday, August 16, 2010

Marburying Marriage -- Cherchez the 9th

The 9th Circuit stops the process in California:

A federal appeals court has extended a stay on same-sex marriages in California until it decides whether a ban on such unions is constitutional.

It is just the latest turn in a protracted legal battle over Proposition 8, the voter-approved ban. The ruling, issued by a three-judge panel of the United States Court of Appeals for the Ninth Circuit, came less than a week after a federal district court
judge, Vaughn R. Walker, lifted a stay that he imposed himself after ruling Proposition 8 unconstitutional. Even when lifting his stay on Thursday, Judge Walker allowed six days for the Ninth Circuit to review his ruling. That left many gay and lesbian couples and their supporters hopeful that same-sex marriages would resume on Wednesday at 5 P.M. when Judge Walker’s stay would have expired.

That will not happen. Now, such weddings will not resume until, at least, the appeal court hears the case.

Here's the interesting part. The current governor and attorney general in California, Arnold Schwarzenegger and Jerry Brown, respectively, were not going to defend the statute. By the time the debate happens, it's possible that there will be new players in those positions, as William Jacobson points out:

Obviously it is interesting that the Court has ordered briefing on the standing issue, although the parties certainly would have done so anyway.

Equally interesting is the political impact, because there will be a new Governor and Attorney General elected in California, and possibly seated (not sure of California law on this, but Schwarzennegger was sworn into office on November 17, 2003).

The standing issue may go away if the new Governor or Attorney General chooses to defend the constitutionality (but not necessarily the wisdom - heh) of Prop. 8. And the position on the lawsuit clearly now is an issue in those elections.

I kinda think Professor Jacobson has a penchant for understatement with that last bit. Just so we're clear, the reason standing is an issue is that the appellant in the case right now is a private organization that favors Prop 8, not the State of California, because Schwarzenegger and Brown chose not to defend their own state constitution in this instance.

Jerry Brown wants to be governor again. He'll now have to talk about his opposition to Prop 8 in his campaign, and he'll have to talk about it rather a lot. It will be interesting to see how that works out for him.

1 comment:

Gino said...

i may be a nonissue with brown. i think his opponent favors same sex stuff. she was ebay CEO, at one time. and they were pretty liberal in their policies.