Tuesday, August 10, 2010

Ah! Will no one come to my rescue?

Some clarification, this time from legal experts, on why the overturn of the Calif. gay marriage ban may not make it to appeal and why there may not be a stay. Which means gays may marry in Calif. real soon.

To seek a stay of a ruling a party in a case must:

* be the party that has been told they must do something,

* make a "strong showing" that they'll win on appeal,

* they will be irreparably harmed if there is no stay,

* other parties will be harmed,

* there is public benefit to the stay.

It was the Calif. government that was ordered to do something, not the gay marriage opponents. The gov't responded, "You want us to issue marriage licenses to gay couples? We'd be delighted to!" That takes care of two points above. As for the last two, the trial proved straight marriages are not harmed, there is no public benefit to withholding marriage licenses from gays, and much harm to gays.

The party pursuing an appeal must show that it has been injured in a concrete manner by the ruling against them and that injury is different from citizens at large. Again, a major finding of the trial was that the anti-gay crowd could show no harm. And the state has declined to appeal.

When cases before the Supremes involve voter initiatives, those that led the initiative drive generally do not have standing to represent it before the high court. Only the government affected by the drive has standing. The Supremes have avoided actually ruling on that question. Whether that same reasoning applies to the 9th Circuit is up to that court. So whether the case can be appealed without the state government's participation is an open question.

The upside: gays in Calif. may begin to marry soon. The downside: this is an excellently reasoned case that could be applied to all of the 9th Circuit (MT, ID, NV, AZ and west -- gay marriage in Idaho?) or perhaps to the entire country, but probably won't.

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