Bench Memos

Re: Prop 8 Plaintiffs’ Frivolous Motion to Vacate Stay Pending Appeal

The timing of the frivolous motion by the Prop 8 plaintiffs to vacate the stay pending appeal also reasonably invites suspicions that the Obama administration was colluding with them.

Specifically: From what I can tell (and I invite correction on the point), the text of Attorney General Holder’s letter announcing the Obama administration’s decision to abandon the defense of DOMA apparently became publicly available somewhere around 12:30 p.m. Eastern time last Wednesday. Prop 8 plaintiffs filed their motion (according to the electronic notice issued by the Ninth Circuit) at 9:56 a.m. Pacific time—i.e., 12:56 p.m. Eastern time. And somehow Prop 8 plaintiffs were able to quote from Holder’s letter in their motion and include a copy of the letter as an attachment to their motion.

More broadly, it is reasonable to suspect that advance notice of the Obama administration’s decision helped spur Prop 8 plaintiffs’ decision to file their motion.

I am not contending that there is anything in principle that is improper about the Obama administration’s working confidentially with its allies. But the Obama administration continues to pretend (implausibly, as same-sex marriage proponent Dale Carpenter explains) that President Obama doesn’t support same-sex marriage. It therefore ought to be noteworthy if—as certainly appears to be the case—his administration was working behind the scenes to assist the plaintiffs in their campaign against Prop 8.

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