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Will the rule of law prevail in Calif.?

Prop. 8 legal team files emergency application with Supreme Court to reverse 9th Circuit’s premature actions

WASHINGTON — The legal team defending California’s marriage amendment filed an emergency application with the U.S. Supreme Court Saturday to vacate a premature order that the U.S. Court of Appeals for the 9th Circuit issued Friday. Alliance Defending Freedom attorneys submitted the application to Justice Anthony Kennedy, the associate justice who decides such motions pertaining to the 9th Circuit.

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. “The 9th Circuit made a clear representation upon which all parties should be able to rely--that the stay would remain in place until final disposition by the Supreme Court. On Friday, the 9th Circuit acted contrary to its own order without explanation. Last year, the 9th Circuit itself reminded all parties to the Proposition 8 case that the ‘integrity of our judicial system depends in no small part on the ability of litigants and members of the public to rely on a judge’s word.’ We agree.”

When the 9th Circuit issued the stay, it stated that “the stay shall continue until final disposition by the Supreme Court.” That disposition, as the 9th Circuit acknowledged Wednesday, will not occur until at least 25 days from June 26 under Rule 45 of the Supreme Court’s rules. The emergency application contends that the Supreme Court must issue its mandate before the 9th Circuit can lift its stay.

“The Ninth Circuit’s June 28, 2013 Order purporting to dissolve the stay of the district court’s injunction is the latest in a long line of judicial irregularities that have unfairly thwarted Petitioners’ defense of California’s marriage amendment…,” the application states. “Failing to correct the appellate court’s actions threatens to undermine the public’s confidence in its legal system.”

The application also notes that media reports indicate that some California officials began solemnizing the relationships of same-sex couples, including both of the couples that filed suit against Proposition 8, within mere minutes of the 9th Circuit’s lifting of the stay.

“Our clients have not been given the time they are due and were promised so that they can make their next decision in the legal process,” said Nimocks. “The more than 7 million Californians that voted to enact Proposition 8 deserve nothing short of the full respect and due process our judicial system provides.”

Alliance Defending Freedom attorneys filed the emergency application together with Andrew P. Pugno, general counsel for, the banner organization for the official proponents and campaign committee of Proposition 8. The U.S. Supreme Court issued its ruling in Hollingsworth v. Perry, the case concerning Proposition 8, on Wednesday.


Alliance Defending Freedom is an alliance-building, non-profit legal organization that advocates for the right of people to freely live out their faith.


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