It’s a last ditch effort that has a very small chance of success. Twenty-four hours after California began issuing marriage licenses to same-sex couples, the Alliance Defending Freedom filed a petition to halt the marriages claiming that the Ninth Circuit had to wait twenty-five days to dissolve their stay.
Claiming erroneously, the ADF writes “The Ninth Circuit’s June 28, 2013 Order purporting to dissolve the stay…is the latest in a long line of judicial irregularities that have unfairly thwarted Petitioners’ defense of California’s marriage amendment. Failing to correct the appellate court’s actions threatens to undermine the public’s confidence in its legal system.”
The ‘irregularities’ involve Judge Vaughn Walker not recusing himself because he’s gay and the decision by an appellate judge not to recuse himself because the group his wife heads filed an amicus brief. Neither are actually irregularities given that minority judges regularly rule on issues involving minorities, and judges do not have to recuse themselves unless there is a direct conflict of interest. It is more likely that the Ninth set aside the amicus instead of considering it.
The petition to reinstate the stay went to Justice Anthony Kennedy, the man who wrote the majority opinion saying that the backers lacked legal authority to appeal the original decision.
Such requests are not normally granted even if the appellate court had said that they would wait until the waiting period for asking the Supreme Court to reconsider had elapsed. In fact, despite claims from ADF Senior Counsel Austin Nimocks that the case was not over yet because his clients had 22 days to ask for the reconsider, the Court almost never grants such requests as well.
Nimocks claimed that “Everyone on all sides of the marriage debate should agree that the legal process must be followed. On Friday, the 9th Circuit acted contrary to its own order without explanation.”
Unfortunately for Nimocks, the Ninth is not bound by the time line of the Supreme Court and has independent authority over its own orders. According to Law Professor Vikram Amar, the backers of Prop 8 can still ask the Supreme Court to rehear the case during the 25-day waiting period. He said “As a matter of practice, most lower federal courts wait to act, but there is nothing that limits them from acting sooner. It was within the 9th Circuit’s power to do what it did.”