The 9th Circuit Court of Appeals has issued an order “staying” Judge Vaughn Walker’s ruling that California’s Proposition 8 was unconstitutional. This decision is, on one level, unfortunate, both because it will stop same-sex marriages from continuing and because of evidence that ending marriage discrimination makes moderates more reluctant to restore it. What makes the order bad for social justice, though, made it nearly inevitable legally: because refusing to stay Walker’s order would create an advantage for one side while it’s far from certain that the ruling will be upheld by higher courts, staying the order is legally reasonable (and had the 9th Circuit not intervened, the Supreme Court probably would have).
One interesting aspect of the stay order is that it ordered the litigants “to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing.” This would seem to strengthen the speculation of some observers that the 9th Circuit may be looking for a way to uphold Judge Walker’s ruling without issuing a broad ruling about the unconstitutionality of same-sex marriage that a majority of the Supreme Court might be inclined to reverse. Oral arguments in this case will be interesting.
—Scott Lemieux
