# Prop-8 Arguments Today - What will happen? **URL:** \ **Category:** Great Debates\ **Created:** [March 5, 2009, 2:50pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386 "2009-03-05T14:50:54Z")\ **Posts on this page:** 20\ **Page:** 5
**Author:** ![Gangster\_Octopus](https://avatars.discourse-cdn.com/v4/letter/g/a8b319/32.png) [@Gangster\_Octopus](https://boards.straightdope.com/u/Gangster_Octopus)\ **Post date:** [August 4, 2010, 5:55pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/81 "2010-08-04T17:55:54Z")
Correct me if I am wrong, but the standard for a stay would be what? The probability it would be overturned and the potential harm from allowing it? Is that correct. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 4, 2010, 5:58pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/82 "2010-08-04T17:58:31Z")
> [@Gangster\_Octopus](#): > > > [@Bricker](#): > > > > Whichever way it goes is relatively meaningless. The loser will appeal to the circuit court. The loser there will appeal to the Supreme Court, and I don’t see how they can dodge it. > > If an appeal is filed does that mean that the ruling would not go into affect? > [@Really\_Not\_All\_That\_Bright](#): > > Up to the judge. If he overturns Prop 8, he could issue a stay (once an appeal is filed) preventing new marriages. He he upholds it, obviously no stay would be required. Exactly right. As things stand, the Prop 8 measure is valid and binding. If the judge finds that there’s nothing offensive to the federal constitution in the measure, then it remains valid and binding. If he finds that Prop 8 does violate the federal constitution, he may, but does not have to, stay the effect of his ruling pending appeal. And if he decides not to stay the effect of his ruling, the federal circuit court could stay it on an emergency basis pending their hearing of the matter. If neither of those things happen, then the ruling goes into effect and Californians can once again marry members of their own gender. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [August 4, 2010, 6:07pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/83 "2010-08-04T18:07:42Z")
> [@Gangster\_Octopus](#): > > Correct me if I am wrong, but the standard for a stay would be what? The probability it would be overturned and the potential harm from allowing it? Is that correct. I don’t know what the rule in California would be for the original judge to grant the stay. For the higher court to grant it, the Prop 8 supporters would have to show that they had a good chance of prevailing on the merits of the case (not necessarily that it would probably be overturned; more that their appeal isn’t frivolous), and that the harm to them from not granting a stay would be greater than the harm to the appellees (in this case, the couples who filed the suit) from granting it. I think the Prop 8 supporters can demonstrate that they have a good chance of winning, but I don’t know what harm they could show from the stay not being granted. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 4, 2010, 6:18pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/84 "2010-08-04T18:18:32Z")
> [@Gangster\_Octopus](#): > > Correct me if I am wrong, but the standard for a stay would be what? The probability it would be overturned and the potential harm from allowing it? Is that correct. There are four factors: [ul] [li]the likelihood that the party seeking the stay will prevail on the merits of the appeal[/li][li]the likelihood that the moving party will be irreparably harmed absent a stay[/li][li]the prospect that others will be harmed if the court grants the stay[/li][li]the public interest in granting the stay[/li][/ul] Although these factors are the same as the ones considered before a preliminary injunction, the evidentiary posture of the case is (or should be) dramatically different). The preliminary stay asks the court to guess at what the factual record will develop into; the stay pending appeal is evaluated against a fully developed and final factual record. For this reason, the party requesting a stay will have a very difficult time showing “likelihood of prevailing on the merits.” On the other hand, it’s not necessary to show a strong probability of success on the merits if you can show a huge and irreparable harm – as one court put it, “more of one excuses less of the other.” To evaluate irreparable harm, courts generally look at: [ul] [li]the seriousness of the potential injury[/li][li]the likelihood of it happening[/li][li]the strength of the proof that the injury will happen and be irreparable[/li][/ul] ---
**Author:** ![begbert2](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/begbert2/32/3357_2.png) [@begbert2](https://boards.straightdope.com/u/begbert2)\ **Post date:** [August 4, 2010, 6:23pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/85 "2010-08-04T18:23:31Z")
So let me get this straight - the “moving” party in this case is the people who want gay marriage, right? They’re the ones who need to be shown to be in peril? Or is it the ones who want to prevent gay marriage? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 4, 2010, 6:27pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/86 "2010-08-04T18:27:34Z")
> [@Really\_Not\_All\_That\_Bright](#): > > > [@Gangster\_Octopus](#): > > > > Correct me if I am wrong, but the standard for a stay would be what? The probability it would be overturned and the potential harm from allowing it? Is that correct. > > I don’t know what the rule in California would be for the original judge to grant the stay. > > For the higher court to grant it, the Prop 8 supporters would have to show that they had a good chance of prevailing on the merits of the case (not necessarily that it would probably be overturned; more that their appeal isn’t frivolous), and that the harm to them from not granting a stay would be greater than the harm to the appellees (in this case, the couples who filed the suit) from granting it. > > I think the Prop 8 supporters can demonstrate that they have a good chance of winning, but I don’t know what harm they could show from the stay not being granted. Federal trial. California rules mean nothing. Federal Rules of Appellate Procedure, 8(a)(1). ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [August 4, 2010, 6:28pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/87 "2010-08-04T18:28:02Z")
The petitioners in the original lawsuit were people who wanted gay marriage. The court is expected to rule in their favor, and Prop 8 supporters are preparing an appeal. While the appeal is pending, Prop 8 supporters are expected to request that the judge’s ruling (overturning Prop 8) be stayed, to prevent gay marriages from taking place between now and the appeal. > [@](#): > > Federal trial. California rules mean nothing. Federal Rules of Appellate Procedure, 8(a)(1). Yeah, I’m talking about applicable case law governing whether people getting married would constitute harm. Anyway, I’m pretty sure you didn’t mean 8(a)(1): > [@](#): > > (a) Claims for Relief. > > A pleading that states a claim for relief must contain: > > (1) a short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support; ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 4, 2010, 6:30pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/88 "2010-08-04T18:30:55Z")
> [@begbert2](#): > > So let me get this straight - the “moving” party in this case is the people who want gay marriage, right? They’re the ones who need to be shown to be in peril? Or is it the ones who want to prevent gay marriage? The moving party would have to be the ones who wish to PREVENT gay marriage. If they lose, then they would be the ones asking the judge to stay his ruling. If they win, then the losing party (the ones who WANT gay marriage) don’t benefit from a stay, since the law is already in place. In other words, if the judge leaves things the way they are, a stay of his ruling is meaningless: with or without his ruling, there’s no gay marriage. If the judge changes things, then the party losing by his change would ask for his ruling to be stayed. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 4, 2010, 6:32pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/89 "2010-08-04T18:32:28Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Anyway, I’m pretty sure you didn’t mean 8(a)(1): > > > [@](#): > > > > (a) Claims for Relief. > > > > A pleading that states a claim for relief must contain: > > > > (1) a short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support; Oops. Yeah, just meant 8(a) in general, and really the case law that flows from it. See what happens when I do things from memory? Nothing good. ---
**Author:** ![begbert2](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/begbert2/32/3357_2.png) [@begbert2](https://boards.straightdope.com/u/begbert2)\ **Post date:** [August 4, 2010, 6:34pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/90 "2010-08-04T18:34:28Z")
> [@Bricker](#): > > > [@begbert2](#): > > > > So let me get this straight - the “moving” party in this case is the people who want gay marriage, right? They’re the ones who need to be shown to be in peril? Or is it the ones who want to prevent gay marriage? > > The moving party would have to be the ones who wish to PREVENT gay marriage. > > If they lose, then they would be the ones asking the judge to stay his ruling. > If they win, then the losing party (the ones who WANT gay marriage) don’t benefit from a stay, since the law is already in place. > > In other words, if the judge leaves things the way they are, a stay of his ruling is meaningless: with or without his ruling, there’s no gay marriage. > > If the judge changes things, then the party losing by his change would ask for his ruling to be stayed. Thanks for the clarification - I’m not so good with the legal terms. So then what you’re saying is, if the stay is to be granted (which will obviously only be pursued if they lose), the anti-gay-marriage folks would have to show that allowing other couples to have gay marriages would cause demonstrable harm to the anti-gay-marriage folks? If so, I don’t recall them having a lot of luck with that in the past. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 4, 2010, 6:36pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/91 "2010-08-04T18:36:17Z")
[Wait a sec:](http://www.law.cornell.edu/rules/frap/rules.html#Rule8) > [@](#): > > Rule 8. Stay or Injunction Pending Appeal > (a) Motion for Stay. > > (1) Initial Motion in the District Court. > > A party must ordinarily move first in the district court for the following relief: > > (A) a stay of the judgment or order of a district court pending appeal; > > (B) approval of a supersedeas bond; or > > (C) an order suspending, modifying, restoring, or granting an injunction while an appeal is pending. One of us is confused. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [August 4, 2010, 6:39pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/92 "2010-08-04T18:39:06Z")
Yeah, it was me. I was looking at the rules of civil procedure. :smack: ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 4, 2010, 6:40pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/93 "2010-08-04T18:40:04Z")
> [@begbert2](#): > > Thanks for the clarification - I’m not so good with the legal terms. So then what you’re saying is, if the stay is to be granted (which will obviously only be pursued if they lose), the anti-gay-marriage folks would have to show that allowing other couples to have gay marriages would cause demonstrable harm to the anti-gay-marriage folks? > > If so, I don’t recall them having a lot of luck with that in the past. Well, they may take the tack of saying that if you allow gay marriages, and then ultimately the appeals court reverses the issue, you leave all these married folk in quasi-limbo, uncertain of their status and creating a legal quagmire. Better, they might say, to get a final, binding, precedential answer and THEN start letting people get married. That’s what I’d try, anyway. But it’s not a hill I’d be prepared to die on, because there are ALREADY such folks in limbo, given that people got married before Prop 8 passed. That argument would be a hell of a lot stronger but for them. If I were the judge, I doubt I’d grant a stay. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 4, 2010, 6:41pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/94 "2010-08-04T18:41:23Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Yeah, it was me. I was looking at the rules of civil procedure. :smack: Double :smack: for you. I was so proud of myself for dredging that up out of the dustbin and you made me doubt myself!! ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [August 4, 2010, 6:42pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/95 "2010-08-04T18:42:15Z")
> [@Really\_Not\_All\_That\_Bright](#): > > The petitioners in the original lawsuit were people who wanted gay marriage. The court is expected to rule in their favor, and Prop 8 supporters are preparing an appeal. While the appeal is pending, Prop 8 supporters are expected to request that the judge’s ruling (overturning Prop 8) be stayed, to prevent gay marriages from taking place between now and the appeal. They’ve already filed for a stay…I presume it was preemptive to have the judge consider a stay in the opinion outright (if the judge invalidates Prop-8) without having to go back to court…or something (IANAL): > [@](#): > > Attorneys on both sides have said an appeal was certain if Walker did not rule in their favor. The case would go first to the 9th U.S. Circuit Court of Appeals then the Supreme Court if the high court justices agree to review it. > > Anticipating such a scenario, lawyers for the coalition of religious and conservative groups that sponsored Proposition 8 in 2008 filed a legal brief Tuesday asking Walker to stay his decision if he overturns the ban so same-sex couples could not marry while an appeal was pending. > > “Same-sex marriages would be licensed under a cloud of uncertainty, and should proponents succeed on appeal, any such marriages would be invalid,” they wrote. > > SOURCE: [http://www.huffingtonpost.com/2010/08/04/prop-8-decision-judges-ru\_n\_669988.html](http://www.huffingtonpost.com/2010/08/04/prop-8-decision-judges-ru_n_669988.html) ---
**Author:** ![Suburban\_Plankton](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/suburban_plankton/32/219_2.png) [@Suburban\_Plankton](https://boards.straightdope.com/u/Suburban_Plankton)\ **Post date:** [August 4, 2010, 6:46pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/96 "2010-08-04T18:46:41Z")
I appreciate the attempts by several posters to clarify the situation, legal-wise, for the rest of us, but from a practical standpoint it seems to me that nothing that happens today makes much difference in the long run. As was mentioned upthread, no matter what the judge’s ruling is, the ‘losing’ side is going to appeal, and the losing side of that judgement will appeal, until the US Supreme Court hears the case and makes a ‘final’ ruling. That will likely take years, and I can’t see any judge or court changing the status quo pending all those appeals, because that would just create more confusion than anyone wants. ---
**Author:** ![MrDibble](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mrdibble/32/114_2.png) [@MrDibble](https://boards.straightdope.com/u/MrDibble)\ **Post date:** [August 4, 2010, 8:05pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/97 "2010-08-04T20:05:49Z")
Is it possible (not necessarily in this case) for leave to appeal to be denied? If so, who denies it? ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [August 4, 2010, 8:30pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/98 "2010-08-04T20:30:29Z")
> [@MrDibble](#): > > Is it possible (not necessarily in this case) for leave to appeal to be denied? If so, who denies it? The circuit court can refuse to hear the appeal, which would in effect mean the lower court’s decision was affirmed. It probably won’t, though. Even if it did, the appellees (prop 8 folks) would be able to appeal it to the Supreme Court. If the appeal is not timely filed (ie., before the lower court’s order becomes final, which I think is 90 days for federal courts, but am not going to bother looking up) or if the original suit was dismissed for lack of standing, or for lack of an issue for which a remedy exists, or some such, the original judge can dismiss the appeal on his own authority. None of those are likely to apply in this case. [QUOTE=Whack-a-Mole] They’ve already filed for a stay…I presume it was preemptive to have the judge consider a stay in the opinion outright (if the judge invalidates Prop-8) without having to go back to court…or something (IANAL): [/QUOTE] Even if the judge is inclined to grant the stay, he doesn’t have to consider it immediately. It’s likely that there will be a window (probably of no more than a few hours) during which SSM becomes legal again. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [August 4, 2010, 8:58pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/99 "2010-08-04T20:58:29Z")
Prop 8 deemed unconstitutional. > **[HuffPost - Breaking News, U.S. and World News](https://www.huffpost.com/?err_code=404&err_url=http%3A%2F%2Fwww.huffingtonpost.com%2F2010%2F08%2F04%2Fproposition-8-overturned_n_670739.html)** > > Read the latest headlines, news stories, and opinion from Politics, Entertainment, Life, Perspectives, and more. ETA: More info (which is still sparse) - [http://latimesblogs.latimes.com/lanow/2010/08/prop8-gay-marriage.html](http://latimesblogs.latimes.com/lanow/2010/08/prop8-gay-marriage.html) ---
**Author:** ![HookerChemical](https://avatars.discourse-cdn.com/v4/letter/h/278dde/32.png) [@HookerChemical](https://boards.straightdope.com/u/HookerChemical)\ **Post date:** [August 4, 2010, 8:59pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/100 "2010-08-04T20:59:02Z")
From the local NPR station: > [@](#): > > Judge Walker has ruled that Proposition 8 violates the U.S. Constitution. [http://blogs.kqed.org/prop8/](http://blogs.kqed.org/prop8/) This round goes to the pro-gay marriage side. On edit: Damnit, **Whack-a-Mole**. You even had a link. [Previous page](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386.md?page=4) [Next page](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386.md?page=6)