By Rick Hasen, William H. Hannon Distinguished Professor of Law, Loyola Law School - Los Angeles and Publisher, Election Law Blog.
Does this week's Ninth Circuit order putting on hold any gay marriages in California pending the resolution of appeals in the case mean that the appellate court is likely to reverse Judge Walker's decision declaring California's Proposition 8 unconstitutional? Or, to the contrary, does the fact that the Ninth Circuit also ordered the Proposition 8 proponents to brief the question whether the initiative proponents have standing to appeal in the case mean that the Court is likely to dismiss the appeal without reaching the merits? I believe caution is in order, and that proponents and opponents of gay marriage should read very little into the Ninth Circuit's order as to how that court is likely to decide the Proposition 8 case. But the Ninth Circuit's decision to issue a stay could increase the chances that the Supreme Court ultimately will side with gay marriage supporters.
Let's begin with the tenuous relationship between the stay order and an ultimate resolution of this case in the Ninth Circuit. As ACSBlog readers no doubt know, on August 4, federal district judge Vaughn Walker declared unconstitutional under the equal protection and due process clauses California's Proposition 8, an initiated constitutional amendment which bars same sex-marriage. On August 12, Judge Walker denied the request by Proposition 8's proponents to stay his ruling pending appeal, though he issued a temporary stay to allow the proponents time to seek a stay from the Ninth Circuit. Judge Walker's stay denial raised the question whether initiative proponents have adequate standing to bring an appeal in the case (given that California government officials have aligned themselves with plaintiffs' position that Proposition 8 is unconstitutional and were not going to appeal).
Proposition 8 proponents then sought a stay from the Ninth Circuit; otherwise, under Judge Walker's order, gay marriage would have been legal as of 5 p.m. today. On paper, appellate courts are supposed to give considerable deference to a trial court judge's decision to grant temporary relief such as a preliminary injunction or a stay. In practice, in hot button cases the Ninth Circuit has shown little deference to district court stay decisions and the Supreme Court has shown even less deference to the Ninth Circuit.
Under the Ninth Circuit's general orders, emergency stay motions are decided by a "motions panel" of up to three judges, assigned monthly on a rotating basis. The judges who decided the Proposition 8 stay order are not the same judges who will decide the ultimate appeal. Instead, three other judges - possibly the judges who decided an earlier appeal in the case involving the use of a video feed of the trial - will be deciding the merits of the appeal.
So one reason why the Ninth Circuit's decision on the stay is not a likely reflection of what the Ninth Circuit will do on the merits of the appeal is that the decisionmakers are not the same (unless, of course, the same judges on the motions panel are chosen by chance). Even so, some have suggested that the decision to grant a stay must have reflected a belief on the part of the motions panel that the appeal had merit, because judges are supposed to take likelihood of success on appeal into account in deciding whether or not to grant a stay. Though it is possible that likelihood of success on appeal played a part in the motions panel's decision, my guess (and it is only a guess, because the motions panel offered no explanation for its stay order) is that a stronger factor was a desire to preserve the status quo pending appeal. Without a stay, there could have been a number of gay marriages performed while the case was on appeal, and in the event that Judge Walker's decision was reversed on the merits, then there would be further litigation over the status of those marriages and potentially a lot of disappointed people and difficult financial and family law issues to untangle. Preserving the status quo has always been a very strong factor in considering whether or not a stay should be granted.
Nor would I make much of the fact that the Ninth Circuit motions panel directed the proponents to address the standing question. Federal courts are courts of limited jurisdiction, and it is only prudent to have a jurisdictional issue like standing fully briefed once it was raised by Judge Walker. Indeed, in a little-noticed second order yesterday, the same motions panel also consolidated an appeal of the Proposition 8 ruling by Imperial County (a supporter of Proposition 8), raising the possibility that Imperial County could be found to have standing in the case. If the mention of standing in the first order meant the judges were dubious about standing, the second order meant the judges were thinking of a way out of the standing problem.
There's one more reason why at least some of the judges on the Ninth Circuit motions panel could have supported a stay besides concern about the status quo: It makes it more likely that the Supreme Court would ultimately find Proposition 8 unconstitutional. Had the Ninth Circuit upheld Judge Walker's denial of a stay, the issue would have fallen into the lap of Justice Kennedy (the Supreme Court Justice who handles emergency appeals from the Ninth Circuit) on an expedited schedule. Observers believe he's likely the swing vote on Proposition 8's constitutionality, and an emergency stay request could have brought the issue to him without giving him time for adequate reflection and rumination on the constitutional issues.
Now the case is on the back burner. The Ninth Circuit can be very slow in issuing opinions. There's no deadline after the scheduled December argument for the court to issue an opinion. Once an opinion issues, the losing party can ask for a larger "en banc" panel of Ninth Circuit judges to hear the case. It is even possible that the case could be heard by the entire Ninth Circuit. It is entirely possible for a few years to elapse before the case could get to the Supreme Court. By then, public opinion could shift more firmly toward gay marriage, and it is possible that such an emerging social consensus could influence Justice Kennedy toward striking down Proposition 8.
This case already has had more than its share of twists and turns. But for those who want to predict what will happen in the appellate courts, there's really very little to go on so far. Certainly we should not rely on a procedural order containing no written rationale offered by a different set of decisionmakers than the judges who will decide the merits of the appeal.