Federal Judiciary

Judges move quickly on Prop. 8

By Akin Gump Supreme Court Practice Group

A motions panel of the Ninth Circuit Court on Friday set a fast schedule for reviewing a plea to put on hold, for several months, a federal judge’s ruling striking down California’s Proposition 8 ban on same-sex marriage.  In a scheduling order, the panel ordered briefing completed by Monday morning — a little more than two days before the ruling would go into effect if it were not postponed.

The panel allowed the backers of Prop 8 to file their emergency stay request at a length well beyond the norm, and ordered a reply by 11 p.m. (Pacific time) Friday by the opponents of the gay marriage ban.  The backers then are to file a reply by 9 a.m. Monday.   Under the schedule set by District Judge Vaughn R. Walker, his August 4 ruling against the ban would take effect at 5 p.m. on Wednesday, if not stayed by a higher court.  Walker on Thursday refused to issue a lengthy stay for the appeal.

The timing is short, especially if the Circuit Court panel refuses the stay request, and the Prop 8 proponents attempt to get the Supreme Court to step in and delay the decision.  Presumably, though, temporary stays could be allowed, to permit less-pressured consideration in the higher courts.

Friday’s order was issued by a panel made up of experienced judges on the Circuit Court: Senior Judges Edward Leavy, a 23-year veteran, and Michael Daly Hawkins, soon approaching his 16th anniversary on the bench, and Sidney R. Thomas, a 14-year veteran.  Those may not be the judges who would rule on the merits of Judge Walker’s decision, if the case goes to the merits.  Under a briefing schedule set earlier for the merits phase, the briefing would not be completed until late December, meaning that the case would not be decided by the Circuit Court until at least the early months of 2011.

(NOTE TO READERS: The blog will cover the filing of the brief by the ban’s opponents, but perhaps not  until Saturday morning, if it is filed close to the Pacific time deadline set by the motions panel — that is, 2 a.m., Eastern time.)

Full post as published by SCOTUSBLOG on August 13, 2010 (boomark / email).