Stay Lifted in Proposition 8 Case — As Of Next Week

Judge Walker formally denied the request of the proponents of Proposition 8 for a “stay” of his ruling on same-sex marriage, thus allowing marriages of lesbian and gay couples to proceed. However, at the same time he deferred the implementation of this ruling for a week, to allow the proponents to appeal this decision to the Ninth Circuit Court of Appeals or, if that is not successful, to the U.S. Supreme Court. Therefore, there will be no marriages in California until after those courts rule on the stay issue, some time before August 18th.

What is most interesting about this ruling is the primary reason Judge Walker cited in his decision. Apart from his belief that the proponents did a lousy job at trial and are not likely to win on appeal, he believes that there’s a strong likelihood that the proponents will not even be allowed to pursue an appeal! The reason for this is that the proponents were not the “named” defendants in the case — the State of California was the prime defendant, since it was a challenge to a state law. Now that the Governor and the Attorney General have stated that they do not intend to appeal Judge Walker’s decision, technically there is no “defendant” wishing to pursue an appeal. According to federal law, it isn’t so clear if an intervening proponent has the right to file an appeal. And if they can’t file an appeal they can’t challenge today’s order.

Most observers predicted that the stay would be granted, and so the issue of standing on appeal would not be addressed for a few months. But by ruling as he has, Judge Walker has forced the appellate court to consider this issue now. The appellate judges can uphold the decision to allow marriages to proceed, or they can reverse the decision. Moreover, they don’t need to reach their decision by next week, as they can extend the stay for a few weeks to consider the decision.

One sweet note — in response to the proponents concern that allowing marriages to happen would create confusion on behalf of the married couples, Judge Walker remarked that he didn’t think any of the proponents were likely to marry a same-sex spouse, and so they didn’t have anything to worry about !

Stay tuned — it’s going to be a fascinating journey!