The Ninth Circuit has granted the appellants motion for a stay in Perry. This makes sense, because it would be stupid and cruel to tell yet another class of gay people that they were married, only to have that marriage called into question later on.
The granting of the stay might even be considered evidence that the Ninth expects the Proponents to prevail on the appeal. However, their cautionary statement about standing evens that right out.
Interestingly, the Ninth Circuit specifically asked the parties to brief Arizonans for Official English v. Arizona.
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). IT IS SO ORDERED.
Well, the first reason is that the court declined to rule on the standing issue in AOE. They hemmed and hawed and mumbled about it, but then said they would consider the parties to have standing so they could get to the meat of the case: the fact that the whole thing was moot.
From the summary of the case:
Grave doubts exist as to the standing of petitioners AOE and Park to pursue appellate review under Article III’s case or controversy requirement. Standing to defend on appeal in the place of an original defendant demands that the litigant possess “a direct stake in the outcome.” Diamond v. Charles, 476 U.S. 54, 62. Petitioners’ primary argument–that, as initiative proponents, they have a quasi legislative interest in defending the measure they successfully sponsored–is dubious because they are not elected state legislators, authorized by state law to represent the State’s interests, see Karcher v. May, 484 U.S. 72, 82. Furthermore, this Court has never identified initiative proponents as Article III qualified defenders. Cf. Don’t Bankrupt Washington Committee v. Continental Ill. Nat. Bank & Trust Co. of Chicago, 460 U.S. 1077. Their assertion of representational or associational standing is also problematic, absent the concrete injury that would confer standing upon AOE members in their own right, see, e.g., Food and Commercial Workers v. Brown Group, Inc., 517 U. S. ___, ___, and absent anything in Article XXVIII’s state court citizen suit provision that could support standing for Arizona residents in general, or AOE in particular, to defend the Article’s constitutionality in federal court. Nevertheless, this Court need not definitively resolve the standing of AOE and Park to proceed as they did, but assumes such standing arguendo in order to analyze the question of mootness occasioned by originating plaintiff Yniguez’s departure from state employment. See, e.g., Burke v. Barnes, 479 U.S. 361, 363, 364, n. Pp. 18-21.
Well, this is the court wanting to have their cake and eat it too. It is quite odd to just pretend they have standing. Either they did or the didn’t. But don’t go running your mouth about it, and then decide that you were going to pretend they had standing.
The Ninth circuit is understandably queasy about the case, though, because the Supreme Court said the Ninth had botched the standing issue in the case.