Professor Bill Jacobson of Legal Insurrection reports that the Ninth Circuit Court of Appeals has granted a stay of the District Court order overturning the Prop 8 ban on same sex marriages and in the process ignored the lower court's language that the Proponents lacked standing to appeal:

The Court of Appeals for the 9th Circuit has granted a stay pending an expedited appeal of the District Court Order which held that California Prop. 8 violated the U.S. Constitution. The Court specifically ordered the supporters of Prop. 8 to brief if they had standing to appeal:

Appellants' motion for a stay of the district court's order of August 4, 2010 pending appeal is GRANTED. The court sua sponte orders that this appeal be expedited pursuant to Federal Rule of Appellate Procedure 2. The provisions of Ninth Circuit Rule 31-2.2(a) (pertaining to grants of time extensions) shall not apply to this appeal. This appeal shall be calendared during the week of December6, 2010, at The James R. Browning Courthouse in San Francisco, California.

The previously established briefing schedule is vacated. The opening brief is now due September 17, 2010. The answering brief is due October 18, 2010. The reply brief is due November 1, 2010. In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing. See Arizonans For Official English v. Arizona, 520 U.S. 43, 66 (1997).

Obviously it is interesting that the Court has ordered briefing on the standing issue, although the parties certainly would have done so anyway.

Equally interesting is the political impact, because there will be a new Governor and Attorney General elected in California, and possibly seated (not sure of California law on this, but Schwarzennegger was sworn into office on November 17, 2003).

Clarice Feldman