Update, 11:30 a.m. Sunday: The Associated Press is reporting that U.S. Supreme Court Associate Justice Anthony Kennedy has denied, without comment, a petition from supporters of Proposition 8 to set aside a Friday appeals court order that allowed the immediate resumption of gay and lesbian weddings across California.

Last week, the Supreme Court ruled that Prop. 8 proponents had no standing to challenge a 2010 ruling by U.S. District Court Judge Vaughn Walker that found the same-sex marriage ban violated the Constitution’s equal protection guarantees. Walker’s order had been stayed by the 9th U.S. Circuit Court of Appeals in San Francisco pending the outcome of the case, on which the Supreme Court heard arguments in March. The 9th Circuit dissolved the stay on Friday, meaning Prop. 8 no longer has any legal force in California. That touched off a wave of same-sex weddings in San Francisco, Los Angeles and elsewhere.

Prop. 8 supporters petitioned Kennedy, the justice who oversees issues in the 9th Circuit, to reverse the appeals court action. They argued that the appeals panel lacked the authority to lift the stay because it had not yet received a certified copy of the high court’s opinion. They said ending the stay denied them a chance to ask the Supreme Court for a rehearing of the case.

Original post (Saturday, June 29): Proponents of Proposition 8, the ban on marriage passed by California voters in 2008, asked the U.S. Supreme Court today to immediately stop same-sex weddings that resumed in San Francisco and throughout the state yesterday in the wake of a high court ruling earlier this week.

The Scottsdale, Arizona-based Alliance Defending Freedom filed an emergency request on behalf of Prop. 8 sponsors DefendMarriage with Associate Justice Anthony Kennedy, who oversees requests pertaining to the federal courts’ 9th Circuit, which includes California.

The motion argues that the 9th U.S. Circuit Court of Appeals lacked authority to lift a stay on a 2010 lower-court order that declared Prop. 8 unconstitutional. By lifting its stay on Friday, the appeals court cleared the way for same-sex weddings to begin immediately. The Prop. 8 supporters’ motion asks Kennedy to reverse the appeals court order lifting the stay immediately.

What are the chances Kennedy will grant the request? That depends on who you ask.

Here are two familiar voices on the Prop. 8 legal issues, quoted in the Los Angeles Times, law professors Vik Amar of UC Davis Law School and John Eastman of Chapman University (he’s also chairman of the pro-Prop. 8 group National Organization for Marriage:

“… Amar said the chance of the Supreme Court intervening to stop same-sex marriages in California was ‘pretty low’ after backers of Proposition 8 filed an emergency petition Saturday with the court calling for a halt to the marriages.

“Amar said the U.S. Supreme Court would act to stop the marriages only if it was inclined to agree to reconsider the case. ProtectMarriage has 25 days from the ruling to ask for reconsideration. Amar estimated that the Supreme Court grants only one or two such motions per decade.

“Although the 9th Circuit and other appeals courts normally wait to act until the period for a rehearing request has expired, the judges can remove a hold on an order as soon as they receive a certified copy of the Supreme Court decision, he said.

“…Eastman, who has publicly backed Proposition 8, disagreed. He said his research indicates the 9th Circuit violated a federal rule Friday when it lifted the hold on a district judge’s decision to stop enforcement of the marriage ban.

Here’s the emergency request to the Supreme Court from the Proposition 8 supporters:

Prop. 8 Supporters Emergency Request to Set Aside 9th Circuit Order and Stop Same-Sex Weddings. by Dan Brekke

Here’s the original story from the Associated Press:

SAN FRANCISCO — Less than 24 hours after California started issuing marriage licenses to same-sex couples, lawyers for the sponsors of the state’s gay marriage ban filed an emergency motion Saturday asking the U.S. Supreme Court to step in and stop the weddings.

Attorneys with the Arizona-based Alliance Defending Freedom claim in the petition that the 9th U.S. Circuit Court of Appeals acted prematurely and unfairly on Friday when it allowed gay marriage to resume by lifting a hold it had placed on same-sex unions while a lawsuit challenging the ban made its way to and through the Supreme Court.

Alliance Defending Freedom Senior Counsel Austin Nimocks says a three-judge 9th Circuit panel acted prematurely and unfairly when it lifted a hold on same-sex marriages it had put in place while a legal challenge to the voter-approved ban made its way through the courts.

Nimocks says the Supreme Court’s consideration of the case is not done yet because his clients still have 22 days to ask the justices to reconsider their decision holding that Proposition 8’s backers did not have legal authority to defend the ban.

The U.S. Supreme Court cleared the way for gay marriage to return to the nation’s most populous state by ruling 5-4 on Wednesday that the sponsors of California’s voter-approved ban on same-sex unions lacked authority to defend the measure in court.

Also Wednesday, the Supreme Court overturned the federal law that prevented the government from awarding federal benefits to same-sex couples.


Dan Brekke

Dan Brekke is a blogger, reporter and editor for KQED News, responsible for online breaking news coverage of topics ranging from California water issues to the Bay Area's transportation challenges. In a newsroom career that began in Chicago in 1972, Dan has worked as a city and foreign/national editor for The San Francisco Examiner, editor at Wired News, deputy editor at Wired magazine, managing editor at TechTV as well as for several Web startups.

Since joining KQED in 2007, Dan has reported, edited and produced both radio and online features and breaking news pieces. He has shared in two Society of Professional Journalists Norcal Excellence in Journalism awards — for his 2012 reporting on a KQED Science series on water and power in California, and in 2014, for KQED's comprehensive reporting on the south Napa earthquake.

In addition to his 44 years of on-the-job education, Dan is a lifelong student of history and is still pursuing an undergraduate degree.

Email Dan at: dbrekke@kqed.org

Twitter: twitter.com/danbrekke
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