Marriage equality foes jumped at the chance to appeal Judge Vaughn Walker's decision striking down Prop. 8 and formally filed an appeal Thursday morning.
If accepted, the case will head to the ninth circuit court of appeals, which has no deadlines to hear the case, according to KTXL in Sacramento. A three-judge panel will be chosen at random to decide the appeal; they will likely ask for written arguments from both sides before scheduling a hearing.
Walker has a hearing scheduled for Friday where the issue of if and when same-sex California couples can begin marrying again will be addressed -- he has stayed his decision on that matter until at least Friday, but it's expected he will stay the matter until the ninth circuit makes its decision.
After the ninth circuit does make its decision, the Perry v. Schwarzenegger case will almost certainly land in the lap of the U.S. Supreme Court. Many believe the high court's decision hinges on Justice Anthony Kennedy, who often provides a swing vote. Marriage equality supporters are heartened by Walker's wording of his decision, which legal experts view as rational and well thought out. Walker's main points -- that Prop. 8 violates the U.S. Constitution's equal protection and due process clauses and that a simple notion that straight couples are superior to gay couples is irrational and not a sound basis for law -- may be difficult for lawyers and the judges of the ninth circuit and the Supreme Court to refute.
"If the Supreme Court does not want to uphold
same-sex marriage, its job has been made harder by this decision," Northwestern Law School professor Andrew Koppelman told The New York Times. "They are supposed to take as true facts found by the district court, unless they are clearly erroneous."
Erwin Chemerinksy, a professor at the University of California, Irvine, School of Law, was impressed by Walker, as well.
"I think that Judge Walker wrote a superb opinion," Chemerinksy writes in an email to The Advocate. "But ultimately, I think the higher courts will decide this case de novo. If they want to affirm, they'll cite his findings of fact. If they want to reverse, they will ignore them. The conventional wisdom -- which I share -- is that it comes down to Anthony Kennedy. There only have been two Supreme Court cases protecting rights for gays and lesbians -- Romer v. Evans and Lawrence v. Texas. Both were written by Anthony Kennedy."
But University of California, Los Angeles, law professor Eugene Volokh doesn't see Walker's decision as such a slam dunk for same-sex marriage. Volokh believes Walker's arguments can be rebutted, and he wondered why the federal judge used the argument of irrationality and didn't bring up the issue of suspect class -- a description given to gay people by the California supreme court, meaning that laws treating them differently than other people must receive strict legal scrutiny.
"There was nothing about suspect class and [laws concerning gays] being viewed with heightened scrutiny," Volokh says of Walker's decision. "In [Walker's] view, President Obama is irrational and probably a majority of Americans are irrational. That's a harder argument to uphold [than the suspect class] argument."
The appeal process is expected to be long and expensive. To contribute to the legal defense and
help AFER take this trial to the Supreme Court click here.