Marriage to Resume August 18

By Advocate.com Editors

Originally published on Advocate.com August 12 2010 11:35 AM ET

Federal judge Vaughn R. Walker put marriage for same-sex couples on hold for at least another six days, extending a
temporary stay until August 18 and allowing Proposition 8 supporters time to appeal his ruling. 

As of Thursday evening, that's already happened. Attorneys defending Prop. 8 filed an emergency appeal to the U.S. court of appeals for the ninth circuit, claiming that "by enacting ... Proposition 8 in 2008, the people of California have declared clearly and consistently that the public interest lies with preserving the definition of marriage as the union of a man and a woman."

Prop. 8 proponents argued that in his decision Judge Walker "ignored virtually everything — judicial authority, the works of eminent scholars past and present in all relevant academic fields, extensive documentary and historical evidence, and even simple common sense."

Depending on how the ninth circuit rules on the appeal, marriages could resume on Wednesday or be put off indefinitely, though legal observers expect the stay to be lifted.

But in recent days a hot-button legal question has also emerged: Do Prop. 8 supporters, who defended the ballot measure after state officials declined to do so, have standing to appeal the case, one that many expected would end up before the U.S. Supreme Court?

"Judge Walker’s order clearly sets out his view that the proponents of Prop. 8 do not have standing to appeal without a state defendant, so no doubt that issue will be a very interesting one to watch," National Center for Lesbian Rights executive director Kate Kendell told The Advocate.

In his 11-page order on the stay — one nearly as anticipated on Twitter on Thursday as the actual decision in the case last week — Walker rejected both the likelihood that Prop. 8 supporters would succeed upon appeal and the argument that allowing same-sex couples to marry would result in "irreparable injury" for the state because it would result in a "cloud of uncertainty."

Attorneys who defended Prop. 8 in court after state officials declined to do so had failed to identify any legitimate reason why they themselves would be harmed should California resume granting marriage licenses to gay couples, Walker wrote. On the other hand, a stay of the decision "would force California to continue to violate plaintiffs’ constitutional rights and would demonstrably harm plaintiffs and other gays and lesbians in California," he wrote. 

In a perplexing jab at the two gay couples who sued last year after they were denied marriage licenses, Prop. 8 supporters had argued that since neither couple chose to wed in 2008 during the brief window of time when same-sex couples were legally allowed to do so, they now lacked the urgency to take such a step.

Walker flatly dismissed that argument: "Whether plaintiffs choose to exercise their right to marry now is a matter that plaintiffs, and plaintiffs alone, have the right to decide."

Theodore Olson, who argued on behalf of the four plaintiffs seeking marriage rights, said that Walker's ruling "recognizes that there is no reason to delay allowing gay men and lesbians to enjoy the same rights that virtually all other citizens already enjoy." 

The pro-Prop. 8 legal team nevertheless also appeared to declare partial victory on Thursday, praising Walker for extending his temporary stay to allow for their appeal.

"We look forward with confidence to a decision vindicating the democratic process and the basic constitutional authority of the seven million Californians who voted to retain the traditional definition of marriage," lead attorney Charles J. Cooper said in a statement.

Whether Cooper will succeed in preventing same-sex couples from marrying Wednesday is another story. Kendell, who called the stay in the Prop. 8 case "quite possibly the most followed in the history of law," said anti-marriage equality advocates were highly unlikely to prevail in appealing the stay.

"It's very clear that there is no legal basis for a stay being granted in this case," Kendell said. "Given the issues and the real-life impacts on people's lives, it's not entirely surprising that Judge Walker would permit the ninth circuit the opportunity to review the issue. However, given the clear law against granting a stay, we look forward to seeing couples able to marry next week.”

Jennifer C. Pizer, National Marriage Project director for Lambda Legal, said in a statement that Walker "applied the standard legal tests in the standard way and reached the only logical conclusions given the overwhelming evidence produced at trial: nobody is harmed — especially not the backers of Prop. 8 — by restoring equality in marriage to California's same-sex couples."

"Nobody suffers when everyone is treated equally," Pizer said. "There's enough equality to go around."  

Walker ruled last week that the 2008 ballot measure violated both the equal protection and due process clauses of the U.S. Constitution. "Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license," Walker wrote in a decision deemed by many legal observers to be both straightforward and breathtaking in its scope. Prop. 8 proponents have appealed that decision.

Some city clerks in California had already given notice they would
be performing ceremonies if the stay was lifted immediately. In San Francisco and Los Angeles, couples were allowed to fill out paperwork while awaiting Judge Walker's decision. But wedding ceremonies have been put on hold — for now, at least. 

Watch video from West Hollywood and San Francisco below.