Did the Legal Team in Perry Just Win For Good?

Posted on 08 Aug 2010 at 2:44pm

When the Perry v. Schwarzenegger decision was announced earlier this week there was – to quote Monty Python – much rejoicing.  But immediately following the excitement and celebration there came a dark echo of caution: “This isn’t over,” it said.  “There are still appeals to the Ninth Circuit, and eventually, to the Supreme Court.  Anything could happen.”

Except, what if that’s only half right?  What if part of the “anything” that could happen is that Judge Vaughn Walker’s decision isn’t appealed, never goes to the Ninth Circuit (much less SCOTUS) and Prop 8 is permanently, fabulously, dead?

In a motion filed late yesterday, lawyers for the plaintiff couples and the City of San Francisco argued that marriages should be allowed to begin immediately, rather than be stayed pending appeal.  One of their arguments was that an appeal might never happen.  They argued this because the governmental defendants – the Governator and the once (and future!) Governor Moonbeam – are not appealing and the Yes on 8 proponents – who were let in at the trial court as intervenors – don’t have standing to appeal.

In a nutshell, from a non-lawyer, it seems that Justice Ginsburg, in the opinion to Arizonans for Official English v. Arizona (which was decided on other grounds), expressed “grave doubts” as to whether the proponents of a ballot measure had standing to appeal a federal court ruling in the absence of governmental actors making an appeal.  In other words, the Yes on 8 folks might not have the right to appeal Walker’s decision.
This, apparently, is why Imperial County tried to get in on the case in the eleventh hour – the haters realized that without a government entity willing to appeal, they could be shit out of luck. But Walker shut them down, both saying they didn’t have a good reason to be let in and that they waited until after the deadline, so they really are SOL.  So unless Schwarzenegger or Jerry Brown have a sudden change of heart and decide to appeal the ruling (or Imperial County convinces a higher court that they really should be in on the case) Walker’s ruling could be the final word.

That would mean that the case doesn’t go up, Prop 8 is struck down, and marriage returns to California with no worries about SCOTUS.  In the meantime, Gill v. OPM will go up, with a much smaller ask of the Supremes, which should give everyone a better idea as to whether or not a ruling in favor of marriage equality in a Perry type case is even a possibility at this point.  If so, there’s 37 other states where this kind of suit can be filed and go forward (and hopefully there will be a few more states in the pro-marriage equality column at that point).  If Gill makes it clear SCOTUS isn’t going to save the day, well, then we can go back to the state-by-state strategy with California firmly in the “win” column.

I think this gambit, if it works, is brilliant. Let’s hope it does!
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