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9th Circuit Court Grants Stay on Same Sex Marriage

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By Tanya Roth, Esq. on August 17, 2010 11:35 AM

We are now back where we started, nearly. Late yesterday afternoon, August 16, a three judge panel of the 9th Circuit Court of Appeals made a U-turn in the legal journey of Perry v. Schwarzenegger and reinstated the stay placing same sex marriage on hold in California.

In addition to granting the motion by the proponents of Proposition 8 for a stay, the panel of judges; Edward Leavy, Michael Daly Hawkins and Sidney R. Thomas have also set the appeal itself on a fast track. In their Order, the judges set aside the previous briefing schedule and have ordered the first briefs for the appeal to be filed in September, with the appellate hearing set for the first week in December.

The decision of the 9th Circuit panel is really no indication of how that court will rule when they reach the actual issues of the case. The New York Times quotes Richard L. Hasen, a professor of law at the Loyola Law School Los Angeles and FindLaw contributor, agreeing with this assessment. "I don't think that the granting of the stay means much, if anything, about how the Ninth Circuit will rule on the merits," he said. "It won't be the same panel deciding the merits as decided the stay motion."

In addition, as noted in a previous post on this blog, in his Order denying the stay, Judge Vaughn Walker expressed his doubts as to whether the proponents of Prop 8 even have standing to appeal to the 9th Circuit Court of Appeals. Now, the court itself would like to look further into this issue. In their Order, the judges requested that the appellants (proponents of the law) brief the court on "why this appeal should not be dismissed for lack of Article III standing" (citation omitted).

Again, this request is not a firm indication that the court will dismiss the case for lack of standing, but this will certainly be an issue to watch, consider and discuss as this landmark case makes its way to the next step in its journey.

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