Last Wednesday, those good Christians at Alliance Defending Freedom had everything sorted out. They were going to continue appealing Proposition 8 forever irrespective of the Supreme Court ruling.

The bottom line is that the U.S. Supreme Court has thrown Prop 8
into legal limbo. We simply do not know what the fate of Prop 8 will
be. But under California law, Prop 8 still stands because there is no
appellate court decision striking it down, which is necessary to void
an initiative of the people in that state.

The state’s attorney general disagrees. The simple explanation is that California is obliged to accept the supremacy of a federal court decision. But don’t bother ADF with legal realities. They answer to a higher authority.

ADF was not the lead Supreme Court council for ProtectCalifornia.com. That would be Cooper & Kirk. Nevertheless, when California started marrying gay couples, ADF filed an emergency motion with the Supreme Court claiming that California was obligated to wait 25 days for the Supreme Court to issue final judgment in the matter. The 25 days is supposed to allow for a request for a rehearing; Something that never happens. ADF has a few problems     something that Cooper & Kirk probably realized. Nevertheless:

The 9th Circuit’s order prematurely lifted a stay on a district court
order that had declared the amendment unconstitutional. Court rules
require the 9th Circuit to wait for a certified copy of the judgment
from the Supreme Court before taking action, and the high court has not
yet issued its certified judgment.

“Everyone on all sides of the marriage debate should agree that the
legal process must be followed,” said Senior Counsel Austin R. Nimocks.

First of all, they do not have a client with standing in federal court. ProtectCalifornia could not demonstrate how they would be harmed if Prop 8 were invalidated. That has already been determined by The Nine. Therefore, Justice Kennedy (the circuit Justice) is obligated to deny ADF’s stay on “standing.”

Secondly, the stay that might have prevented marriages for a month was put in place by the 9th Circuit Court of Appeals. They can lift the stay at any time of their choosing.

Thirdly, the stay and a request for a rehearing are not mutually exclusive. ADF is free to request a rehearing which they are not legally entitled to because their client does not have standing in federal court.

In other words, in plain speech, Alliance Defending Freedom is fucked; ProtectCalifornia.com is fucked; National Organization for Marriage is fucked. This thing has dragged on for almost five years. They exhausted the legal process with losses at trial, at appeal, at an en banc appeal and finally at the US Supreme Court. Enough already!

By David Cary Hart

Retired CEO. Formerly a W.E. Deming-trained quality-management consultant. Now just a cranky Jewish queer. Gay cis. He/Him/His.