Gay Marriages To Go Forward In California, Appeal May Be In Jeopardy

Judge Walker lifted the stay on his Order declaring Proposition 8 unconstitutional, but the big news may be the procedural defect that could doom any appeal.

Not surprisingly Judge Vaughn Walker issued an Order today that will allow same-sex marriage to go forward in California starting next week absent a further stay from the Court of Appeals:

SAN FRANCISCO – Same sex marriage is legal again in California. Sort of.

Just a week after ruling that Proposition 8 — a 2008 voter-approved ban on same-sex marriage — was unconstitutional, a federal district judge lifted a stay on his decision on Thursday, opening the door for untold numbers of gay couples to marry in the nation’s most populous state. But he delayed implementation of the order to lift his stay until Aug. 18.

Vaughn R. Walker, the chief judge of the Federal District Court in San Francisco, who invalidated Proposition 8 in last week’s decision after presiding over a trial earlier this year, had issued a temporary stay to allow for arguments whether same-sex ceremonies should be allowed to be performed pending an appeal by supporters of the ban.

On Thursday, however, Judge Walker declined to extend that stay, but said he would allow the United States Court of Appeals for the Ninth Circuit – where the case has been appealed by proponents of Proposition 8 — time to consider the matter.

His opinion of the ban, though, seems certain. “The evidence presented at trial and the position of representatives of the state of California show that an injunction against enforcement of Proposition 8 is in the public’s interest,” he wrote.


Gov. Arnold Schwarzenegger, a Republican, had asked the court to lift the stay saying it was “consistent with California’s long history of treating all people and their relationships with equal dignity and respect.” And on Thursday, he said he was pleased with the decision. “Today’s ruling continues to place California at the forefront in providing freedom and equality for all people,” the governor said in a statement.

Given the tone of Judge Walker’s ruling last week, this isn’t really that much of a surprise. The issue now goes to the Ninth Circuit, which, almost immediately, will be forced to decide whether to follow Judge Walker’s lead here or to impose a stay pending the outcome of the appeal. Ordinarily in a case like this, the most likely course of action would be to impose the stay but there’s nothing about this case so far that’s been ordinary so it’s hard to predict what might actually happen.

Regarding the appeal itself, though, David Lat at Above The Law  points to a portion of Judge Walker’s ruling today that could have important implications for the proponents of Proposition 8:

Governor Arnold Schwarzenegger and Attorney General Jerry Brown didn’t defend Prop 8 in the trial court. They are actually in favor of allowing same-sex marriages to proceed.

Do the Prop 8 proponents, who defended the gay marriage ban in the district court, have standing to appeal? From Judge Walker’s ruling on the stay:

Proponents’ intervention in the district court does not provide them with standing to appeal….

As it appears at least doubtful that proponents will be able to proceed with their appeal without a state defendant, it remains unclear whether the court of appeals will be able to reach the merits of proponents’ appeal. In light of those concerns, proponents may have little choice but to attempt to convince either the Governor or the Attorney General to file an appeal to ensure appellate jurisdiction. As regards the stay, however, the uncertainty surrounding proponents’ standing weighs heavily against the likelihood of their success.

If neither Brown nor Schwarzenegger chooses to appeal the case, and no law requires that they do as far as I know, then an appeal by the people who helped put Prop 8 on the ballot and get it passed isn’t an appeal by the state and that by itself could be sufficient grounds to dismiss the appeal on the grounds that it was not brought by a party with proper standing.

Why is this significant ?

Because, a dismissal by either Ninth Circuit or the Supreme Court on standing grounds would not go to the merits of either Judge Walker’s ruling or Proposition 8 itself and would provide either of those Courts with a method by which they could let the ruling stand without ruling on it’s merits, and in a way that wouldn’t void the marriage laws of every other state in the Union. Judge Walker’s opinion would be persuasive authority to another Court reviewing the issue elsewhere in the country, but it would not be binding on any Judge outside the State of California.

Since the Plaintiff’s brought this case with the hopes of getting it to the Supreme Court — hence the reason the hired the two best Supreme Court litigators in the country — this wouldn’t be exactly what they wanted, but it would be a way for the Courts to avoid sticking their foot on this particular jurisprudential third rail for the time being. Same-sex marriage would be legal in California, and that would be highly significant politically for sure, but the time bomb of a Supreme Court decision invalidating every law against same-sex marriage in the country would, for a little while at least, be delayed.

It may not happen but, as this case makes its way through the Court system, keep this possibility in mind.

FILED UNDER: Gender Issues, Law and the Courts, US Politics, , , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. Zelsdorf Ragshaft III says:

    Do you think it is a good idea to run for governor after having refused to defend a proposition which won with a majority in California?  If those that supported Prop. 8 vote Republican, Meg and Carly are our next Gov. and Sen.  Lots of Americans do not want to be ruled by judicial fiat. Win the battle, lose the war.  But then that logic is lost on you Doug.

  2. california on my mind says:

    Zeldorf –  you obviously don’t pay attention to the polls in CA, where a clear majority now OPPOSE proposition 8.
    Brown is right on both the law and the politics.  And what you are smoking to predict the two ladies are going to win is still illegal, even in California

  3. anjin-san says:

    Funny how conservatives are against the “tyranny of the majority” – except when they can use it to keep some group they don’t approve of down…

  4. ponce says:

    “Do you think it is a good idea to run for governor after having refused to defend a proposition which won with a majority in California?”
    Support for gay marriage has increased considerably since the Prop 8 vote.
    A majority of Americans now support it…and I bet a majority of Californians support it now, too.

  5. Michael Reynolds says:

    Well, just great!  This will destroy traditional marriage in California.  My wife and I will obviously have to get divorced.  I’ll have to figure out how to get her to take the RAV and let me keep the Audi.  Plus I’ll have to figure out the whole child custody thing — how to avoid getting it.
    Damn gays.

  6. JKB says:

    I think

    Krauthammer hit it right on the head when he commented this was going the abortion route.  But this makes it even worse, judicial fiat and politician abdication of the will of the people.  Good luck feeling secure in your same-sex marriage for the next 50 years.  No way the issue dies down if it gets imposed in this manner.  No, there’ll always be the danger of yet another lawsuit shooting for a SCOTUS hearing that could send the marriages into limbo.


  7. ponce says:

    I doubt it,  JKB.
    The states that have same sex marriage now report no ill effects from it.
    In a few years this will be a non-issue in California.

  8. sam says:

    I think the part of the judge’s opinion concerning the stay pretty much captures the deep, deep confusion of the proponents of Prop 8. Arguing for a stay on the basis of irreparable injury

    Proponents also point to harm resulting from “a cloud of uncertainty” surrounding the validity of marriages performed after judgment is entered but before proponents’ appeal is resolved…. Proponents have not, however, alleged that any of them seek to wed a same-sex spouse.


  9. Sam,

    Yea that is a nice little quip there by Walker, but I think it could be important in the Court of Appeals if the state does not apply for a stay (which it won’t since it didn’t at the District Court level). The proponents of Prop 8 cannot show how they would be harmed if Judge Walker’s ruling were allowed to remain in effect.

  10. sam says:

    Eggzactly Doug — No harm, no foul. no stay.  BTW, over at Sully’s place,  there’s a really extended discussion of the standing issue, the basis of review (strict vs rational – and maybe some other, distinct from intermediate), what might happen if the 9th remands, if SCOTUS ever gets a crack at it, and so forth  Interesting stuff.

  11. JKB says:

    ponce,  it doesn’t matter if SSM is good, bad, or ugly or even the near or far future opinion of it.  If it is imposed via the courts it will remain contentious with the smallest group of opponents always looking for that one case that will overturn it or altering the courts to favor ban via appointment of friendly judges.  The opinion on abortion has changed a lot over the years but the issue is still just one case away from reversal or so the political side of the house fears.
    I’ve read speculation that there will be another initiative in 2012 that may go pro-SSM and moot this case.  That would go along way toward settling the issue since although the court has ruled, it would be the political process that really made the change.

  12. Wayne says:

    Re “A majority of Americans now support it…and I bet a majority of Californians support it now, too.”
     If that is true then have the people vote on repealing it instead of finding an activist judge to overturn the will of the people. Why doesn’t that happen? Because it is unlikely that it would be repeal.
     Unfortunately this activism by judges may end up resulting in the U.S. Constitution being amended. Once done it will make it easier IMO for further amendments. Thus giving even more powers to the Federal Government which IMO have too much power already.

  13. An Interested Party says:

    “Good luck feeling secure in your same-sex marriage for the next 50 years.”

    Such tasty sour grapes…

    “No, there’ll always be the danger of yet another lawsuit shooting for a SCOTUS hearing that could send the marriages into limbo.”

    Yes, because such a danger has worked out so well in outlawing abortion…

    Back in the 60s, when the Supreme Court outlawed segregation in all its various forms, there were also people whining about judges overturning the will of the people…I wonder if those who are crying foul today will be looked upon in 20 or 30 years just like those disgruntled folks from the 60s are now viewed… 

  14. mantis says:

    Why do so many conservatives talk constantly of their love and allegiance to the Constitution, while having very little knowledge of the document?
    Unfortunately this activism by judges may end up resulting in the U.S. Constitution being amended. Once done it will make it easier IMO for further amendments.
    No, it will be exactly as difficult as it was before.
    Thus giving even more powers to the Federal Government which IMO have too much power already.
    And there you go. Please don’t talk about the Constitution if you haven’t read it.  Now, let us refer to Article 5, which lays out the procedure for amending the Constitution:
    The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
    All amendments to the Constitution must be ratified by the legislatures (or Const. Conventions) of the states.  The Congress has the power to propose amendments, but the states pass them.  Thus, passing any individual amendment gives the Federal Government no new powers, as you claim, nor does it amplify the powers it already possesses.

    Read the Constitution before you make comments pertaining to it.  Otherwise you do nothing but prove your own ignorance.