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UPDATE: Pro-Prop 8 Emergency Petition Denied, Supreme Court Justice Kennedy Refuses To Halt Same-Sex Marriages

Measure's proponents had cited 25 day waiting period allowing possible rehearing

by Joe Mello
LBREPORT.com Community Correspondent



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(June 30, 2013, 9:50 a.m.) -- U.S. Supreme Court Justice Anthony Kennedy has turned down an emergency petition (described below) in which Prop 8 proponents urged the Court to apply its 25 day waiting period to the 9th circuit U.S. Court of Appeals, which allowed same-sex marriages to resume in CA (June 28) by lifting the Appeals Court's stay on the ruling of a federal district judge who (following a trial on the merits) found Proposition 8 unconstitutional.

Justice Kennedy rejected the challenge without comment and without seeking the views of Prop 8's opponents (who prevailed when the Court's majority (5-4) ruled that Prop 8's proponents lacked federal court standing to defend the measure when CA officials refused to do so.


(June 29, 2013, 6:24 p.m.) -- The Alliance Defending Freedom, joined by attorney Anthony Pugno, today (June 29) filed an emergency petition with the U.S. Supreme Court urging it to apply the 25 day waiting period the group says should have been allowed to take place before the 9th circuit U.S. Court of Appeals lifted its stay (June 28) on the ruling of a federal district judge who (after a trial on the merits) found Proposition 8 unconstituional.

The Alliance Defending Freedom is a religious legal alliance (describes itself as "an alliance-building, non-profit legal organization that advocates for the right of people to freely live out their faith") that successfully sued to have the 2004 San Francisco same sex marriages authorized by then Mayor Gavin Newsom halted.

In a release on its website, the group states:

The legal team defending California’s marriage amendment filed an emergency application with the U.S. Supreme Court Saturday to vacate a premature order that the U.S. Court of Appeals for the 9th Circuit issued Friday. Alliance Defending Freedom attorneys submitted the application to Justice Anthony Kennedy, the associate justice who decides such motions pertaining to the 9th Circuit.

The 9th Circuit’s order prematurely lifted a stay on a district court order that had declared the amendment unconstitutional. Court rules require the 9th Circuit to wait for a certified copy of the judgment from the Supreme Court before taking action, and the high court has not yet issued its certified judgment.

"Everyone on all sides of the marriage debate should agree that the legal process must be followed," said Senior Counsel Austin R. Nimocks. "The 9th Circuit made a clear representation upon which all parties should be able to rely--that the stay would remain in place until final disposition by the Supreme Court. On Friday, the 9th Circuit acted contrary to its own order without explanation. Last year, the 9th Circuit itself reminded all parties to the Proposition 8 case that the ‘integrity of our judicial system depends in no small part on the ability of litigants and members of the public to rely on a judge’s word.’ We agree."

When the 9th Circuit issued the stay, it stated that "the stay shall continue until final disposition by the Supreme Court." That disposition, as the 9th Circuit acknowledged Wednesday, will not occur until at least 25 days from June 26 under Rule 45 of the Supreme Court’s rules. The emergency application contends that the Supreme Court must issue its mandate before the 9th Circuit can lift its stay.

"The Ninth Circuit’s June 28, 2013 Order purporting to dissolve the stay of the district court’s injunction is the latest in a long line of judicial irregularities that have unfairly thwarted Petitioners’ defense of California’s marriage amendment", the application states. "Failing to correct the appellate court’s actions threatens to undermine the public’s confidence in its legal system." >[?The application also notes that media reports indicate that some California officials began solemnizing the relationships of same-sex couples, including both of the couples that filed suit against Proposition 8, within mere minutes of the 9th Circuit’s lifting of the stay.

"Our clients have not been given the time they are due and were promised so that they can make their next decision in the legal process," said Nimocks. "The more than 7 million Californians that voted to enact Proposition 8 deserve nothing short of the full respect and due process our judicial system provides."

Alliance Defending Freedom attorneys filed the emergency application together with Andrew P. Pugno, general counsel for ProtectMarriage.com, the banner organization for the official proponents and campaign committee of Proposition 8. The U.S. Supreme Court issued its ruling in Hollingsworth v. Perry, the case concerning Proposition 8, on Wednesday.

The Court of Appeal's action lifting its stay -- an action publicly requested by CA Attorney General Kamala Harris -- enabled same sex marriages to begin...and they did in San Francisco and Los Angeles (with outgoing Mayor Antonio Villaraigosa) -- and as seen LIVE on LBREPORT.com -- at least one was publicly performed by a private officiant in Long Beach.

In reporting the action, SCOTUSBlog.com's Tom Goldstein wrote that the purpose of the 25 day wait for a final "judgment" order is to give the losing side time to submit a petition for a rehearing and said "such petitions are as a practical matter never granted." He continued:

Whether the emergency request to Justice Kennedy can succeed is unclear. But it is unlikely. As a formal matter, the Ninth Circuit did not put the Supreme Court’s ruling in the Proposition 8 case into effect prematurely. The Supreme Court held that the proponents of Proposition 8 could not file appeals in federal court. That ruling says nothing about imposing or lifting a stay on same-sex marriage. The court of appeals likely has the authority to act with respect to its own previously entered stay, which is a form of controlling its own docket. Although the court of appeals had previously stated that they stay would remain in effect until the Supreme Court’s ruling was final, it presumably can change its mind... [Full Goldstein ScotusBlog piece here.

Calling the Court of Appeal's action lifting its stay prior to the 25 day waiting period (which allows parties to petition the Supreme Court for a re-hearing of the case) an "outrageous move" and "lawlessness that weakens the public's confidence in the legitimacy of our legal system," Protect Marriage," the ballot proponent of Proposition 8, stated on its website front page today:

[ProtectMarriage.com text]...We took action today against yesterday's outrageous move by the Ninth Circuit Court of Appeals lifting its stay before being ordered by the U.S. Supreme Court to do so. Here’s the media statement we issued:

Today the Proposition 8 legal team filed an emergency petition to U.S. Supreme Court to stop the Ninth Circuit Court of Appeal's premature move requiring same-sex "marriage" [in quotes in website text] licenses in California, weeks before the Supreme Court's decision even goes into effect. The petition, prepared overnight, was submitted Saturday to Justice Anthony Kennedy, the associate justice who decides such motions pertaining to the Ninth Circuit.

When the Ninth Circuit originally put in place its stay to prevent same-sex marriage pending Supreme Court action, it stated clearly that "the stay shall continue until final disposition by the Supreme Court." Under Supreme Court procedural rules, "final disposition" comes when the Supreme Court issues a "mandate" to the Ninth Circuit, at least 25 days after announcing its opinion in the case. The 25-day waiting period is provided to allow parties such as Prop 8's proponents to petition the Supreme Court for a re-hearing of the case.

Today’s petition asks the Supreme Court to find that the Ninth Circuit had no jurisdiction to order same-sex marriages on Friday, since the case had not yet come back down from the nation’s highest court.

"Suspiciously, the Ninth Circuit's announcement late Friday ordering same-sex marriages came as a surprise, without any warning or notice to Proposition 8's official proponents. However, the same-sex couple plaintiffs in the case, their media teams, San Francisco City Hall, L.A. Mayor Antonio Villaraigosa and the California Attorney General all happened to be in position to perform same-sex marriages just minutes after the Ninth Circuit’s "unexpected" announcement.

The petition also reminds the Supreme Court that just last year the Ninth Circuit itself, in stopping a lower court from unsealing illegal video tapes of the Prop 8 trial, said that the "integrity of our judicial system depends in no small part on the ability of litigants and members of the public to rely on a judge’s word." That same principle, Proposition 8 attorneys argue, applies equally to assurances given by Ninth Circuit judges as well.

Andy Pugno, General Counsel for the ProtectMarriage.com Coalition, the official proponents of Proposition 8, said,

"People on both sides of this debate should at least agree that the courts must follow their own rules. This kind of lawlessness just further weakens the public’s confidence in the legitimacy of our legal system. We hope the Supreme Court will step in and restore some order here."

Further as it develops on LBREPORT.com.


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