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Why The Ninth Circuit’s Stay on Gay Marriage Might Help Supporters’ Chances

At the American Constitution Society blog, Rick Hasen breaks down the possible meanings of the Ninth Circuit Court of Appeals’ decision to put a hold on gay marriages in California. He concludes that while it’s hard to read anything into how the Ninth Circuit will ultimately rule on Proposition 8, the decision might increase the chances that the Supreme Court will side with gay-marriage supporters.

The stay decision, Hasen argues, might have been issued for a number of reasons, most obviously to preserve the status quo. That way, if the opinion of Judge Vaughn Walker ends up getting reversed, the state won’t be involved in a whole new round of litigation surrounding the gay marriages that occurred in the intervening period of time.

But the decision itself might help gay marriage supporters because it will buy more time for public opinion to continue warming to the idea of gay marriage before it reaches the Supreme Court:

Had the Ninth Circuit upheld Judge Walker’s denial of a stay, the issue would have fallen into the lap of Justice Kennedy (the Supreme Court Justice who handles emergency appeals from the Ninth Circuit) on an expedited schedule. Observers believe he’s likely the swing vote on Proposition 8′s constitutionality, and an emergency stay request could have brought the issue to him without giving him time for adequate reflection and rumination on the constitutional issues.

Instead, because the stay was granted, the case will likely spend months, even years, held up in the Ninth Circuit before the Supreme Court gets a crack at it. By that time, Hasen reasons, “public opinion could shift more firmly toward gay marriage, and it is possible that such an emerging social consensus could influence Justice [Anthony] Kennedy toward striking down Proposition 8.”

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