The motions panel's order is succinct:
Appellants’ motion for a stay of the district court’s order of August 4, 2010 pending appeal is GRANTED. The court sua sponte orders that this appeal be expedited pursuant to Federal Rule of Appellate Procedure 2. The provisions of Ninth Circuit Rule 31-2.2(a) (pertaining to grants of time extensions) shall not apply to this appeal. This appeal shall be calendared during the week of December 6, 2010, at The James R. Browning Courthouse in San Francisco, California.
The previously established briefing schedule is vacated. The opening brief is now due September 17, 2010. The answering brief is due October 18, 2010. The reply brief is due November 1, 2010. In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing. See Arizonans For Official English v. Arizona, 520 U.S. 43, 66 (1997).
[Pleadings regarding the stay are posted here.]
Translation:
- Same-sex marriages remain on hold at least the next few months.
- They're not messing around. Fed. R. App. P. 2 means normal time limits are suspended; this case is being heard fast, and with no delays.
- And this panel -- which likely isn't the one which will actually hear the appeal -- also is skeptical as to whether the Prop 8 proponents have standing here.
On that last point -- yes, it would be nice if this were all over and Judge Walker's decision couldn't be challenged by appellate courts. But as a matter of democratic self-governance, I'm deeply uncomfortable with the idea that a majority of citizens can pass a state initiative and, depending on what federal judge is drawn, lose the case for its constitutionality but lack the capacity to seek appellate review if the Governor and Attorney General are opposed. That's not to say that Article III standing has been met here -- maybe California state law needs to be amended to explicitly grant initiative proponents such rights going forward -- but I do get a bit of the oogies about the idea of an unreviewable decision. (This isn't the same as saying Prop 8 proponents have been harmed here. They haven't been. But someone should be in a position to defend an initiative which did, unfortunately, receive majority support.)
Lots of smart people have written about the standing issue; here's a compilation of links. As Slate's Emily Bazelon writes:
[I]sn't it odd to think that a majority of the voters could pass a law, and then just because the governor and the attorney general don't like it, no one gets to stand up for it on appeal? Especially after they've been allowed to do so at trial? It's an outcome that allows a court challenge to trump voter preferences in a way that just seems undemocratic and out of joint... [T]o deny the Prop 8 proponents standing would be to get to the heart of the case for gay marriage, because it would show that "their interests"—the interests of the gay-marriage opponents—weren't harmed by Walker's decision. "That is, they lose nothing as a result of gay marriage being legal." It sounds great rhetorically. But it's declaring victory before actually winning on the merits. And to win because your opponent wasn't even allowed to fight is not at all like winning after he fought to the death and you creamed him. Or like winning because he saw your far superior strength, and forfeited.
We're right on the merits, and at least some aspects of Judge Walker's opinion will obtain at least five votes from the Supremes. Don't be afraid.
Finally: yes, the LGBT plaintiffs could now appeal this decision granting the stay to the Supreme Court of the United States, where Justice Kennedy would be initially hearing it. I wouldn't expect it.
Updated: Plaintiffs' statement:
We are very gratified that the Ninth Circuit has recognized the importance and pressing nature of this case and the need to resolve it as quickly as possible by issuing this extremely expedited briefing schedule. As Chief Judge Walker found, Proposition 8 harms gay and lesbian citizens each day it remains on the books. We look forward to moving to the next stage of this case," said Attorney Theodore B. Olson.
"Today’s order from the Ninth Circuit for an expedited hearing schedule ensures that we will triumph over Prop. 8 as quickly as possible. This case is about fundamental constitutional rights and we at the American Foundation for Equal Rights, our Plaintiffs and our attorneys are ready to take this case all the way through the appeals court and to the United States Supreme Court," said Chad Griffin, Board President, American Foundation for Equal Rights.