Unsurprisingly, opponents of SSM are not happy with the 9th Circuit lifting the stay on granting same-sex marriage licenses. They think they should have had a chance to appeal the Supreme Court’s ruling.

Among other arguments, the application also stated that “permitting the Ninth Circuit to prematurely dissolve its stay order would effectively deprive petitioners of a meaningful opportunity to exercise their right to petition for rehearing.”

They have 25 days from the date of the ruling to petition the Supreme Court for a re-hearing. Of course their odds for a re-hearing are beyond slim. It’s very rare in any case, and here 5 justices already ruled that they don’t have standing, and 2 of those willing to give them standing were ready to rule against them. But if the Court really wanted to give them a rehearing, the resumption of same-sex marriages wouldn’t be any actual impediment. Tere were already extant same-sex marriages in California, and this just means there’d be a few more extant ones; hardly the kind of change that would prevent the Court from acting.

There’s a more serious procedural argument here, though.

In their emergency application, affiliated lawyers claimed the Ninth U.S. Circuit Court of Appeals “lacked jurisdiction to issue its order purporting to dissolve the stay.” They reasoned that this appeals court wasn’t authorized to weigh in until the Supreme Court “sends a certified copy of the judgment to the Ninth Circuit.”

Scotusblog’s Tom Goldstein disagrees.

As a formal matter, the Ninth Circuit did not put the Supreme Court’s ruling in the Proposition 8 case into effect prematurely. The Supreme Court held that the proponents of Proposition 8 could not file appeals in federal court. That ruling says nothing about imposing or lifting a stay on same-sex marriage. The court of appeals likely has the authority to act with respect to its own previously entered stay, which is a form of controlling its own docket. Although the court of appeals had previously stated that they stay would remain in effect until the Supreme Court’s ruling was final, it presumably can change its mind…

A further complication is that the Supreme Court has just ruled that the parties making emergency application — the proponents of Proposition 8 — have no legal “standing” to participate in the case in the first place. So the case should not have been in the court of appeals to be stayed. And it is unclear whether the proponents have any right to seek any relief.

Emergency pleas go to the specific Justice assigned to the relevant Circuit, and the Justice for the 9th Circuit is Anthony Kennedy. Kennedy, of course, would love to give them standing and actually hear the case. But why would he? Unless he has a reasonable hope of persuading another justice to grant standing, so they can rehear the case next year, all his intervention would do right now is delay same-sex marriages in California for at least another year, and that’s clearly not an outcome he wants.

It’s odd, perhaps, but Justice Kennedy, a Catholic appointed by conservative icon Ronald Reagan, is going to go down in history as the Court’s great champion of gay rights. He wrote the opinion in Romer v. Evans (1996), Lawrence v. Texas (2003), and, of course, Windsor v. U.S. (2013), and in the latter decision he made an argument that nearly every observer–both favorable and unfavorable–has interpreted as a setup for declaring all SSM bans unconstitutional. He may very well be on the Court long enough to write that final decision.

So the Prop 8 proponents have to know this is a purely symbolic effort, the kind of pro forma action you take so you can’t be accused of not having done everything possible. They might as well, but there can be no doubt they have no illusions about their prospects.

[Update: Not long after I posted this, Kennedy rejected the appeal. I wonder how many nanoseconds it took him to make his decision.]

About James Hanley

James Hanley is former Associate Professor of Political Science at Adrian College and currently an independent scholar.
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