“No vows for now,” read the headline in the San Francisco Chronicle. Tuesday night a three judge panel of the Ninth U.S. Circuit Court of Appeals issued a stay of Judge Vaughn Walker’s order that same-sex marriages be allowed to resume in California. Gay and lesbian couples will have to put off their wedding plans at least until the end of the year, when an expedited appeal of Walker’s decision will be heard.
But it’s not clear now that a substantive appeal to Judge Walker’s ruling will be heard—or that either side necessarily wants it to be. Neither Republican Governor Arnold Schwarzenegger—the original defendant in the case—nor Democratic Attorney General Jerry Brown is likely to appeal the ruling. Both, in fact, filed papers opposing the stay and arguing that same-sex marriages should be allowed to resume immediately. In a statement, Gov. Schwarzenegger said that Walker’s ruling “affirms the full legal protections and safeguards I believe everyone deserves.”
If neither Schwarzenegger nor Brown file an appeal, as Lyle Denniston explains, it’s not clear that Proposition 8’s other supporters have legal standing under Article III of the Constitution to do so. Anyone bringing an appeal of the ruling would have to show that it does real, concrete harm to them. The Supreme Court—conservative justices in particular—has tended to take a narrow a view of who has standing to bring cases before the court. In Arizonans for Official English v. Arizona, the court said it had “grave doubts” about whether supporters of a legislative initiative had standing to defend the constitutionality of a measure they sponsored. And, as Jonathan Chait writes, this is the fundamental problem with the legal case for Proposition 8: it’s hard to show that anyone would actually be harmed by not discriminating against same-sex couples.
“Our strong preference is to litigate this on the merits all the way through and prevail,” Ted Boutrous, one of the lawyers challenging Proposition 8, says. “But we would never cast aside a winning argument.” The legal case against same-sex marriage is weak, and some opponents of same-sex marriage would prefer not to appeal the case in order to “limit the damage to California.” But proponents of same-sex marriage know the risk of taking the argument all the way to the Supreme Court too. As Therese Stewart, a San Francisco city attorney who helped fight the case against Proposition 8, says, “the pro of having it stop here is that you’ve got a ruling that allows marriage in California, and that sort of ends the battle in California.”
Whatever the tactical concerns, it’s hard to believe the case won’t get a hearing eventually. One of the commenters on Andrew Sullivan’s blog may have it right when they say their guess is that “the Supreme Court is going to remand this back to California federal court with instructions to the State of CA that it must mount a defense—most probably with outside counsel.” A lot is at stake, after all. And, as Emily Bazelon says, “do we really want gay marriage to become legal in California because of what’s essentially a technicality?”