Ninth Circuit Stays Pro-Gay-Marriage Ruling, Takes Away GOP Issue

The U.S. Court of Appeals for the Nin^th Circuit, which covers the West Coast, has issued a stay on Federal District Court Judge Vaughn Walker’s ruling overturning the result of California's Proposition 8 ballot initiative, which banned gay marriage. That means no same-sex couples will be granted marriage licenses in California until the appeals court hears the arguments, which has been “calendared” for the week of Dec. 6.

The court also asked the appellants (the advocates of Prop 8) to “include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing.” Article III standing refers to the fact that you can challenge a law's or ruling’s constitutionality only if you are materially harmed by it. Some commentators had predicted that this issue might come up, because it is awfully difficult to see how, just because someone does not like gay marriage, he has standing to challenge it. (That is to say, how exactly is any individual hurt by a couple of consenting adults being married?)

That hint that the appeals court might be leaning toward upholding Walker's ruling notwithstanding, you might assume the biggest losers today are gay-marriage proponents, who will not get to see same-sex-marriage licenses issued in California for a few months, if ever. (Or perhaps you might say the losers are devoted gay couples in California, who, at least for the time being, will continue to live without the legal protections afforded to heterosexual couples.) 

But there is at least one other group with reason to be disappointed: Republicans. Social conservatives were set to use the images of gay couples getting married in California as grist to motivate their base to turn out in the midterm elections. Republicans look certain to gain seats in both houses of Congress, as opposition parties typically do during midterms. Whether they will pull the inside straight they need to take over either—or both—the House and Senate will depend on any number of factors, but turnout is sure to be one. In midterm elections, turnout is typically lower than in presidential years, and Republicans’ hopes are heavily dependent on the assumption that their base, enraged by the passage of health-care reform, the stimulus spending bill, and so on, will turn out in greater numbers than the Democrats’, who are widely seen as discouraged by the failures and compromises of the Obama administration and Congress, such as the abandonment of a public option in health-care reform and the death of a bill to regulate greenhouse-gas emissions. But one little-noticed problem does exist for the right-wing base-mobilization strategy: the list of Democrats’ dastardly deeds focuses heavily on the economic sphere. For a social conservative, the Democrats have not done much to invite images of an American Gomorrah. Obama has moved toward protecting gays from discrimination in workplaces, including the military, but those causes are now broadly popular, and he has moved very gingerly on them—too much so for some gay-rights activists.

Enter the Prop 8 ruling, which made conservatives palpably excited to capitalize on the seemingly inevitable antigay backlash. The National Organization for Marriage, echoing commentators such as Rush Limbaugh, claimed that “Democrats will pay a price for Judge Walker's sins this November.”

This might seem like a non sequitur, since Walker will not appear on anyone’s ballot. (Federal judges are appointed, not elected.) And Walker is not a Democrat: he was appointed by a Republican (the first President Bush). But clearly the likes of Limbaugh and NOM were not going to let such stubborn facts get in the way of any potential electoral advantage. They figured, quite possibly correctly, that any sign of social liberalization that aggravates their supporters could be turned into votes for Republicans. Many pundits claimed that the conservative strategy of getting anti-gay-marriage initiatives onto as many ballots as possible in 2004 helped bring out Bush voters and gave him his margin of victory. (That claim was later contested by some political scientists.)

But, unfortunately for the Republicans and their cheerleaders, there won’t be any gay-marriage licenses issued before the midterms on Nov. 2. Without any certainty that unelected judges will be expanding the civil rights of gays and lesbians, it will be harder to get social conservatives riled up about one district-court ruling. Advocates on both sides will presumably be taking a wait-and-see attitude as the case winds its way through the appeals process, possibly all the way to the Supreme Court.

In theory, gay-marriage advocates could ask the Supreme Court to overturn the stay order itself, although constitutional-law expert Rick Hazen says they "would be crazy to do so."

You can read the stay order here.