Another delay for equality

The Ninth Circuit Court decided to stay Judge Walker’s historical decision striking down the vile Proposition 8, but it’s not all bad news.  From Ari Ezra Waldman at Towleroad:

The three judge panel specifically asked the parties to address the standing issue on appeal and while such specific instruction does happen, it is certainly not the default in most circuit courts of appeal.  It means that this issue is front and center on the judges' radar. This panel -- while not necessarily the panel that will hear the merits of the appeal -- is curious as to how a party not covered or affected by an order could have the right to appeal such an order, i.e., having "standing" to appeal. Certain legal experts see this focus as a victory for the advocates of marriage equality. If the Prop 8 proponents do not have standing to appeal, the case is virtually over and Judge Walker's opinion will bring a second dawn of marriage equality in California.  That's great!

But, if that is where this case ends, marriage equality will extend no farther than California. The state would be added to the list of states granting gay couples the same rights as heterosexual couples, but the case's precedential weight would be limited. Judge Walker's decision would have no effect on Washington State and Oregon and the other states in the Ninth Circuit territory. However, if the Ninth Circuit accepted standing for the Prop 8 proponents, an appellate decision affirming Judge Walker's order could impact the entire Ninth Circuit.  It would also weigh heavily on judges throughout the country as more persuasive. A district court decision, no matter how well-reasoned and air tight, is not as much of an influence to other federal courts addressing this issue than an appellate court decision.

Here are a few ways this can go (there are many others):

- Ninth Circuit denies standing to the Prop 8 proponents.  Marriage equality for California!

- Ninth Circuit accepts standing, hears the merits on appeal.  Affirms Judge Walker's opinion.  Marriage equality for California and, perhaps, the entire Ninth Circuit territory.

- Ninth Circuit accepts standing, hears the merits on appeal.  Vacates (overturns or sends back or says, "No way!") Judge Walker's opinion, Prop 8 and its ban on same-sex marriage stands.

I really can’t decided whether I’d prefer the defendants to be found without standing, which would limit Judge Walker’s ruling to California, or for the Circuit Court to take the case and possibly widen Walker’s judgment to the entire Ninth District, which would engulf a huge portion of the United States, since it could also happen that they rule against us and we lose our big victory.

Let’s wait and see what happens.