August 12, 2010 at 5:31 pm EDT | by Lou Chibbaro Jr.
Judge lifts stay on Prop 8 ruling

Attorneys Ted Olson and David Boies (front) are waging the case against Proposition 8, which banned same-sex marriage in California. (Photo courtesy of Equal Rights Foundation)

A federal judge in California has lifted his self-imposed stay on the ruling he handed down overturning the state’s ban on same-sex marriage, but he ordered that the stay must remain in effect until Aug. 18.

The action by U.S. District Court Judge Vaughn Walker came as crowds of same-sex couples waited anxiously on the steps of San Francisco’s city hall, hoping to be able to obtain marriage licenses within minutes of any decision to lift the stay.

“Because proponents [of Proposition 8] fail to satisfy any of the factors necessary to warrant a stay, the court denies a stay except for a limited time solely in order to permit the court of appeals to consider the issue in an orderly manner,” Walker wrote in an 11-page ruling released Thursday.

Walker’s ruling came eight days after he issued a strongly worded decision overturning California’s Prop 8 on grounds that it violates the U.S. Constitution’s equal protection and due process clauses. Same-sex marriage opponents who defended Prop 8 were expected to immediately challenge Walker’s lifting of the stay before the Ninth Circuit U.S. Court of Appeals, where they are appealing the case.

Activists on both sides of the marriage issue were unsure whether the appeals court would have time to issue its own stay on Walker’s ruling overturning Prop 8 by Aug. 18 or whether the appeals court would reject a stay and allow same-sex marriage to resume in California. Both sides plan to take the case to the U.S. Supreme Court if they lose on the appeals court level.

Jennifer Pizer, senior attorney for Lambda Legal, an LGBT litigation group, said all federal appeals courts have a standard process in place for hearing emergency motions for stays on lower court rulings.

She said it’s “quite possible” that a required three-judge panel of the Ninth Circuit Court of Appeals would be ready to hear arguments for a stay and rule on it before Walker’s Aug. 18 deadline.

“The evidence presented at trial and the position of the representatives of the State of California show that an injunction against enforcement of Proposition 8 is in the public’s interest,” Vaughn said in Thursday’s ruling. “Accordingly, the court concludes that the public interest counsels against entry of the stay proponents seek.”

Pizer noted that Walker raised a potentially explosive issue in his ruling Thursday lifting the stay when he cited legal precedent indicating Prop 8 supporters may no longer have legal standing to appeal the case to the Ninth Circuit.

Walker noted that legal precedent suggests that the state may have sole legal standing to appeal a case like the one involving Prop 8. This could sideline private parties seeking an appeal.

California Gov. Arnold Schwarzenegger and the state’s attorney general, Jerry Brown, filed papers last week that sought to immediately reinstate same-sex marriage in the Golden State. Last year, when same-sex couples filed their lawsuit seeking to overturn Prop 8, Brown refused to defend the same-sex marriage ban law and Schwarzenegger did not challenge Brown’s decision.

That meant California effectively chose not to defend a state law, forcing private groups and legal activists supportive of Prop 8 to fill in for the state in defending the law in court.

Walker said in his ruling Thursday that the private groups did have standing in the U.S. District Court, but a lack of support for an appeal by the state makes it doubtful that Prop 8 backers can file the appeal.

“If, however, no state defendant appeals, proponents will need to show standing in the court of appeals,” he said in his ruling. “Proponents’ intervention in the district court does not provide them with standing to appeal.”

California voters passed Prop 8 in November 2008 in the form of a state constitutional amendment banning same-sex marriage. The vote came less than a year after California’s Supreme Court overturned an earlier ban on same-sex marriage, enabling gay and lesbian couples to marry up until the enactment of Prop 8.

Vaughn’s decision Thursday to lift his stay on his own ruling came on the same day that CNN released a public opinion poll showing for the first time that a majority of Americans support same-sex marriage.

According to CNN, 52 percent of the respondents to the poll replied “yes” when asked, “Do you think gays and lesbians should have a constitutional right to get married and have their marriage recognized by law as valid?”

Forty-six percent of the respondents replied “no” to the question and 2 percent had no opinion, CNN reported. The poll has a margin of error of plus or minus 4.5 percent, CNN said.

Vaughn’s action also came two days after the American Bar Association’s House of Delegates approved a resolution supporting legal recognition of same-sex marriage. The ABA is considered the nation’s preeminent membership organization of legal professionals, including lawyers and judges.

Upon issuing his Aug. 4 ruling overturning Prop 8, Vaughn placed an indefinite stay on the ruling, while giving the opposing parties in the case until Aug. 6 to file motions on whether they would like the hold to be lifted or remain in place until the Ninth Circle appeals court acts on the case.

Attorneys for the group that defended Prop 8 filed papers calling for retaining the stay. But in a development that surprised some political observers, Schwarzenegger, a Republican, filed papers asking Vaughn to lift the stay so same-sex couples could begin marrying immediately. The state attorney general also filed papers seeking the lifting of the stay.

Lou Chibbaro Jr. has reported on the LGBT civil rights movement and the LGBT community for more than 30 years, beginning as a freelance writer and later as a staff reporter and currently as Senior News Reporter for the Washington Blade. He has chronicled LGBT-related developments as they have touched on a wide range of social, religious, and governmental institutions, including the White House, Congress, the U.S. Supreme Court, the military, local and national law enforcement agencies and the Catholic Church. Chibbaro has reported on LGBT issues and LGBT participation in local and national elections since 1976. He has covered the AIDS epidemic since it first surfaced in the early 1980s. Follow Lou

  • No matter how today’s decision goes, it is the ultimate Supreme Court Ruling that is of greatest importance. I have the uttmost confidence in the soundness of Judge Walkers decisions.

    It is a new day. Gone are the days of class superiority:

    “Hey darkey, come on into the grand dining room and serve us white folk ’cause you do it so well, but do not think for a skinny moment that you can EAT with US for Gods sake! Here – take this plate of leftovers to the kitchen – enjoy.”

    Lesser is not Equal. Equality for all!

    • Regardless of what you’re trying to say this was very offensive and ignorant but given the climate in this community I’m not surprised either. And it only show to prove what you really think!

  • I would also prefer that the free world’s Judges decide.

  • Separate is not equal. Prop 8 is as shameful as any other form of segregation. We are all Americans and deserve the same rights. This is a legal issue and needs to be seen as such to protect all of our rights. I am straight, married, have kids, and I oppose prop 8.

  • Hmmmm I wonder if that is the same cnn that removes posts?

    Judicial activist Judge Walker chose to ignore precedence and through judicial supremacy ruled same sex options to be more important than traditional ones. Walker and gay activists want to plant in my mind gay marriage is equal to things like the abolition of slavery, or women overcoming patriarchy! Well that just gives the gay side a false sense of credibility by exploiting those past struggles. Furthermore, I am insulted by your racist attitude that claims I don’t know any better. Who are you narcissist Judge Walker to label my thoughts as irrational? You claim anyone who opposes your view is a bigot or homophobe! I guess that helps you and the activists justify your actions, but it’s clearly not reality. Your reasoning? It’s gays right because you say it is!! Who are you to marginalize opponents to your point of view? Oh I see gay ideas of what should be redefined are more important then everyone else’s. Combining homosexual life styles to redefine the importance of man and woman in child-rearing and the value of traditional marriage is not within the judiciaries subject matter jurisdiction, that’s why we had such a one sided 136 page trial, and the public deserves better. I guess I am supposed to cave and accept redefining marriage and morality. I am supposed to shut up and openly accept the stage set for an anything goes society and not see the legal, cultural, and political consequences to follow this precedent. After marriage is conquered, the activists wont’ shut up, because marriage is just the first step in the far-reaching agenda to redefine.

  • Jeff,

    Quite frankly, the gay rights movement is considered an equivalent to black suffrage or women’s rights. It’s about eliminating the segregation of Americans who should be able to enjoy full rights of an being an American citizen.
    Also, you mentioned the importance of a man and a woman in child-rearing, but multiple studies have shown that there are no significant differences of psychosocial behavior between children of heterosexual parents and children of homosexual parents. Furthermore, children of two, loving homosexual parents have often become more socially adjusted than children of single-parent households. Therefore, these “traditional” values of marriage hold no greater impact on raising a family.
    And I’m interested, what kind of legal, cultural and political consequences will follow this decision? Perhaps gay marriage will pull more money into the economy, as a significantly larger amount of people will begin to get married. Politically, this impact will probably have no impact on you. Culturally, our nation becomes more accepting and tolerant. This could be beneficial for the United States.

  • Matthew,
    Yes, you are clearly missing my point. We are not speaking the same language . A civil union will do this for insurance, medical decisions, etc. period! If thats what you want. You and I are in the audience, watching a two battles between the Constitution, and the judges, and supreme law and the judiciary. Activest judges know they have “Judicial Immunity,” Walker knows he is immune from lawsuit so why not go for it!

  • Jeff – If you are so offended by gay marriage, why are you on this site? Are you interested in talking a walk on the wild side?

  • Gay men and women have the same right to marriage as all adults.

    The state determined that marraige is between a man and a woman. If a gay man wants to be married, he must marry a woman. A lesbian must marry a man. They have the right to marry.

    Gays want to create a new right, a natural right to homosexual marriage. Such a right has never existed, it is a right created by judges, not a natural right created by god.

    I do not have the right to marry my sister, even if a Judge were to declare it to be a natural right. It is still wrong.

    I sincerely desire to be tolerant, and respect all persons, no matter what my personal feelings are.

    I will never accept that Gay marriage is a natural right, even if a Judge declares it so. It is just wrong.

  • Jeff,

    Question. We don’t allow Same Sex Marriage; however who murders their unborn children?
    Answer. That would be us heterosexual males and females who recklessly have sex and than after discussing the matter, choose abortion.

    God would be very proud of homosexuals for looking to enter marriage and I imagine a tear coming from his eyes when he realizes that some “unwanted” children will get a chance at life and love.

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