A reader of my Memo from this morning writes to say that while the petition for a rehearing of the Marriage Cases by the California Supreme Court was denied 4-3, the denial of a stay in the effect of the May 15 ruling was unanimous. So says the San Francisco Chronicle, anyway; the LA Times story I linked this morning does not say more than that the court voted 4-3 against “reconsideration” of its ruling, and that it “also refused to delay enforcement” of it.
The brief text of the Court’s order tells us three things: that the petitions for rehearing the case were denied; that Justices Baxter, Chin, and Corrigan voted for the rehearing; and that the “request to stay the effective date of the decision . . . until after the November 2008 election is denied.” No indication was given whether any of the justices dissented from that part of the order, but that suggests it was indeed unanimous, and that my correspondent is right.
Whatever the three dissenters on the rehearing issue may have thought, it is not in the ordinary course of things to stay the legal effect of a ruling, even or especially for the sake of an intervening election, if a court is not itself reconsidering the substance of it or rehearing the matter on some important subsidiary issue. Having lost on rehearing, the three dissenters can hardly be blamed for not being dead-enders on delaying the effect of the ruling, which would have been a highly unusual move in the circumstances.
Indeed, they should be applauded for consistently declining to politicize the performance of their duties–which is more than can be said for the majority.