Jon Davidson

The waiting game around the Proposition 8 challenge in a federal court in San Francisco grows curiouser and curiouser.

U.S. District Court Judge Vaughn Walker has issued his decision in the case. On August 4, he said the voter-approved amendment to the state constitution that barred same-sex marriages in California is unconstitutional. He said it violates the federal constitution’s guarantees of equal protection and due process. He also issued a temporary “stay”—or delay of the enforcement of his decision.

Now, people interested in the case are waiting again—this time, for Judge Walker’s decision on whether to approve a permanent “stay” until the 9th Circuit U.S. Court of Appeals can weigh in on the merits of the case.

That decision—on whether to extend the stay on when to make his ruling enforceable—could come any day now. Some thought it might come as early as Friday, when briefs were due from attorneys challenging Proposition 8. Those attorneys—from the Ted Olson-David Boies legal team and the city of San Francisco—did not support a stay.

But the bigger surprise Friday was that California Governor Arnold Schwarzenegger and state Attorney General Jerry Brown also opposed the stay. Schwarzenegger had twice vetoed bills from the legislature that sought to allow marriage licenses for same-sex couples. As governor, he and the attorney general are, technically speaking, the defenders of the state constitution, including Proposition 8. In court, they were identified as the defendants.

In the Perry v. Schwarzenegger lawsuit, however, the state declined to defend Proposition 8. And in the governor’s brief concerning the stay, his attorneys say there is no burden on the state to implement Walker’s ruling now and that “implementing the Court’s order now, without further delay, serves the public interest.” A briefer document from Attorney General Brown essentially agrees.

If Walker denies the request for the extended stay, then same-sex couples can begin seeking marriage licenses again in California—at least until a higher court reverses Walker’s ruling—something that may or may not happen.

Jon Davidson, legal director for Lambda Legal Defense and Education Fund, told reporter Karen Ocamb (at LGBTPOV.com) that Schwarzenegger and Brown’s filings opposing a stay “have dramatically changed the likelihood” that Walker will grant the stay.

“This is an unusual situation,” said Davidson, because the state, which Walker’s ruling orders to stop enforcing Proposition 8, has asked Walker to deny the stay.

More importantly, noted Davidson, the Olson-Boies team and San Francisco argue that Yes on 8 may have no right to appeal Walker’s ruling.

When the California government declined to defend Proposition 8, Yes on 8, the coalition that campaigned for the amendment, took over that role. Yes on 8 was identified in court as “defendant-intervenor” and “proponents.”

Because the government-defendants, California’s government, are apparently not going to appeal Walker’s decision, said Davidson, “there will be a legal question of whether, when those who are ordered to do something don’t appeal, someone not ordered to do anything has any right to appeal.”

“To understand this,” Davidson told Ocamb, “one has to appreciate a few things about federal courts.”

“Federal courts can only hear cases where there is what’s called a ‘case or controversy’,” explained Davidson. So, to have an appeal heard, the party that requests the appeal must show that it has a “direct stake in the outcome” of the appeal decision. And, said Davidson, it must also show that it has been “injured” by the lower court ruling in a “concrete manner that is particularized to that party and different from citizens at large who may not like the judge’s ruling.”

In a case involving Arizona’s constitutional amendment declaring English the ‘official language’ of the state, noted Davidson, the U.S. Supreme Court said it had “grave doubts” about whether proponents of that ballot initiative could appeal lower court decisions that found the initiative unconstitutional. The Arizona government did not appeal. In that case, Arizonans for Official English v. Arizona, the Supreme Court, in 1997, decided the case on other grounds, “but its comments,” said Davidson, “strongly indicate that the proponents may have no right to appeal if the other defendants do not.”

“A definitive ruling on whether the proponents have a right to appeal if the defendants do not,” said Davidson, “is not likely to be made in connection with” the ruling about the Proposition 8 stay. But, he said, “Judge Walker or a higher court may comment on the issue” and “…if [Yes on 8 has] no right to appeal, they obviously can’t show they likely would prevail on an appeal.”

So, if the California government—the defendants—do not appeal Walker’s ruling on the merits of the case within 30 days from the day the judge actually “enters” his judgment in the case (which has not yet happened), “then the plaintiffs and San Francisco could file a motion to dismiss the appeal that has already been filed by [Yes on 8] on the ground that the proponents have no right to appeal.”

Therefore, three issues are now in waiting: whether Walker will issue a more extended stay, whether the government will file an appeal on the merits, and whether the 9th Circuit will take the appeal filed by Yes on 8.

If the 9th Circuit does take Yes on 8’s appeal, it will first be heard by a three-judge panel and then, almost certainly, by the 9th Circuit sitting en banc. While, in some circuits, sitting en banc means every judge of the circuit hears the case, in the 9th’s unusually large circuit, said Davidson, it means “a panel of 11 randomly assigned” judges.

If the 9th Circuit refused to hear an appeal from Yes on 8, the group could appeal to the U.S. Supreme Court. The group, said Davidson, “could ask the Supreme Court to decide whether they have a right to appeal. ”

“If the Supreme Court declines to hear that,” said Davidson, “the case is over. If the Supreme Court agrees to consider the question, it could decide that [Yes on 8 has] no right to appeal and, again, the case would be over.”

But if the Supreme Court said Yes on 8 does have a right to appeal, said Davidson, it would “likely” send the case back to the 9th Circuit for three judges to rule on the merits of the appeal, “resulting in a delay of the final determination of the validity of Prop 8 for some time.”

Davidson said that, even if Walker does deny Yes on 8’s request for a stay, he could extend his temporary stay for a brief period of time (a week or so) in order to give the proponents time to ask for a stay from the Ninth Circuit while there’s a temporary stay in place.

“The Ninth Circuit would then apply the same test as Judge Walker did in deciding whether or not to issue a stay of Judge Walker’s order pending the appeal,” said Davidson. “If they deny a stay as well, the proponents could ask Supreme Court Justice Anthony Kennedy (who reviews such matters arising out of the Ninth Circuit) to issue a stay pending the appeal. If he also denies a stay, the proponents could seek a stay from the full Supreme Court.”

Meanwhile, at least a couple of dates are penciled in. The 9th Circuit has given Yes on 8 until November 12 to file its appeal brief, and given the plaintiffs until December 13 to file their response. Davidson said Yes on 8 would then have until January 12 to file any brief in response to plaintiffs.

Any oral argument of the appeal, said Davidson, would “not likely” happen until late 2011.

“It is not unusual for it to take more than a year from the date of argument until the appeal is decided by the Ninth Circuit,” said Davidson. “Once the case is decided, the losing party can seek review” en banc, and “that could add another year or more before the case is even in a position for a party to seek Supreme Court review.”

“Thus, if the appeal is not dismissed, it is possible that a request to the Supreme Court to hear the case might not even have been made by the time of the November 2012 elections,” said Davidson. “If an effort to repeal Prop 8 is made that year and succeeds, it could ‘moot’ the case (meaning that there would no longer be any “live” dispute because Prop 8 would no longer be in effect) and the appeal could be dismissed for that reason.