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Hasen on the Prop 8 Case Stay Order

By Lawrence Solum

Check out Reading the Tea Leaves on the Ninth Circuit?s Stay Order in the Proposition 8 Case by Rick Hasen on the ACS Blog! Here is a taste:

[O]ne reason why the Ninth Circuit's decision on the stay is not a likely reflection of what the Ninth Circuit will do on the merits of the appeal is that the decisionmakers are not the same (unless, of course, the same judges on the motions panel are chosen by chance). Even so, some have suggested that the decision to grant a stay must have reflected a belief on the part of the motions panel that the appeal had merit, because judges are supposed to take likelihood of success on appeal into account in deciding whether or not to grant a stay. Though it is possible that likelihood of success on appeal played a part in the motions panel's decision, my guess (and it is only a guess, because the motions panel offered no explanation for its stay order) is that a stronger factor was a desire to preserve the status quo pending appeal. Without a stay, there could have been a number of gay marriages performed while the case was on appeal, and in the event that Judge Walker's decision was reversed on the merits, then there would be further litigation over the status of those marriages and potentially a lot of disappointed people and difficult financial and family law issues to untangle. Preserving the status quo has always been a very strong factor in considering whether or not a stay should be granted.

Full post as published by Legal Theory Blog on August 18, 2010 (boomark / email).