Bench Memos

The Final Act of the Anti-Prop 8 Farce

From beginning to end, I doubt that there has ever been a federal judicial proceeding more wrought with irregularities and lawlessness than the anti-Prop 8 case. The farce’s finishing touches are therefore all too fitting.

On the day that the Supreme Court issued its ruling in the Prop 8 case, the Ninth Circuit properly gave notice that the Supreme Court’s mandate would not issue for at least twenty-five days (the period during which a petition for rehearing could be filed). The issuance of the Supreme Court’s mandate is what places the matter back in the Ninth Circuit’s jurisdiction.

Notwithstanding that the mandate had not issued, the Ninth Circuit panel (led by Stephen Reinhardt) on Friday afternoon entered an order immediately dissolving the stay that it had placed on then-judge Vaughn Walker’s district-court order, which had permanently enjoined California officials from enforcing Prop 8.

Further, within about 40 minutes of the time that the order dissolving the stay was entered, California attorney general Kamala Harris was officiating at the “marriage” of two of the plaintiffs. Hmmm, did the Ninth Circuit orchestrate the final act of the farce with them by giving them a heads-up that (I am reliably informed) it did not provide to Prop 8 proponents? Or is the otherwise sclerotic government of California somehow remarkably efficient when it wants to be?


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