The Ninth Circuit just issued the following order:
Appellants’ motion for a stay of the district court’s order of August 4, 2010 pending appeal is GRANTED.
The court sua sponte orders that this appeal be expedited pursuant to Federal Rule of Appellate Procedure 2. The provisions of Ninth Circuit Rule 31-2.2(a) (pertaining to grants of time extensions) shall not apply to this appeal. This appeal shall be calendared during the week of December 6, 2010, at The James R. Browning Courthouse in San Francisco, California.
The previously established briefing schedule is vacated. The opening brief is now due September 17, 2010. The answering brief is due October 18, 2010. The reply brief is due November 1, 2010. In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing. See Arizonans For Official English v. Arizona, 520 U.S. 43, 66 (1997).
First, and drastically most importantly, the Court granted the stay. Consequently the thousands of couples who were waiting for the day of equality will have to wait at least a few more months until December. It's interesting that the panel does not at all discuss the reasons for their decision on the motion to stay. That's because if they went through the factors, there's no way they could rationalize the stay. They themselves raise the issue of standing and express an inclination that the case should be dismissed on that basis. How, then, could they possibly determine that the Appellants have a "high likelihood of success on the merits"? And how can they show that the Appellants will suffer any harm if loving couples in California are allowed to marry each other?
Second, the Court wants this case to be resolved quickly. Appellants' opening brief is due in just a month and the hearing will happen on December 6th. This is lightning quick for a Federal Court of Appeals, and it's a very good sign. The Court understands that this case is important, and it doesn't want it to linger.
Third, the Court specifically orders the Prop 8 proponents to show why this case should not be dismissed for lack of standing. Here's a discussion of the standing issue. This is very good news for us. It shows that the Court has serious doubts about whether the Appellants have standing. Even better, the Court is expressing an opinion that its inclination is that the case should be dismissed. That being said, the panel that issued this Order (the motions panel) is not the same panel that will hear that case on the merits. The merits panel will be selected shortly before December 6th and we don't know the three judges who will be on the merits panel. But this is a very good sign that the appeal could be dismissed on the ground of standing alone.
UPDATE (8/17): The Ninth Circuit issued the same Scheduling Order in Imperial County's appeal which challenges Judge Walker's denial of its motion to intervene.