UC Davis law professor Vikram 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.
Chapman University law professor John 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.
Backers of Proposition 8 expressed suspicion about how quickly the two same-sex couples who challenged the ballot measure in court were ready to marry after the 9th Circuit acted, even though no notice had been given that the hold on marriages would be lifted.
“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,” a statement by ProtectMarriage said.
“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.”
On Saturday, ProtectMarriage, the sponsors of Proposition 8, filed its emergency petition with the Supreme Court.
The petition says the U.S. 9th Circuit Court of Appeals' decision to permit weddings to start Friday afternoon was “premature.”
“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,’ ” the group said in a written statement.
“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.”
Supreme Court Justice Anthony M. Kennedy, who wrote Wednesday’s decision that gutted the anti-gay Defense of Marriage Act, usually decides such petitions from Californina.
"People on both sides of this debate should at least agree that the courts must follow their own rules,” said Andy Pugno, chief counsel for ProtectMarriage. “ 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."
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