"I think there are strategic reasons why even the most ardent supporter of gay marriage could opt for a stay," said [Loyola Law School professor Richard] Hasen, an expert on federal court stays. "The concern is that rushing things to the Supreme Court could lead to an adverse result [for supporters of gay marriage.] If this case takes another year to get to the U.S. Supreme Court, there could be more states that adopt same-sex marriage and more judicial opinions that reach that conclusion."
Update Although I thought this meant They have been given standing, I'm corrected by our friendly lawyer Paul (A), who quotes the order thusly:
So standing is NOT a given at this time. make your case, lads!
"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)."
For those tuning in late, "standing" here is whether a party is entitled to participate. Generally, the court has been fairly restrictive about it, so you can't appeal or enter into a case just because you are interested in it, but have to have a real "dog in the fight". In this kind of case, the "standing" belongs to the State of California, but the Governor and AG have decided not to appeal. So the question is, whether the Defendant-interveners who defended Prop8 have the right to appeal, since Prop8 in no way affects or injures them personally (I'm sure PaulA will correct me again if needed!)
Update 2: From Paul (A) in the comments:
Federal courts are limited by the Constitution to deciding "cases and controversies". Precedent has interpreted this to mean that actual parties who have a real stake in the outcome of the case must be represented on both sides. The Arizonans for Official English case held unanimously that proponents of a successful state initiative were not proper parties before the Supreme Court. The Proposition 8 proponents appear to be in the same boat. They will have to convince the Ninth Circuit Court of Appeals that this is somehow a different situation.
John Culhane blogs,
Standing might not be the most viscerally satisfying way of expressing judicial rejection of this ugly impulse, but in its way it affirms an important truth: Those who support initiatives aren’t the ones directly affected by them. Their ability to get enough signatures for the ballot, and then to play to primal fears (nativist, Christianist, and so on) to get their measures passed, can’t and won’t deter courts from discharging their constitutional duty.