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.
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.