Fordham Law


Prop 8 stay ends next week, setting stage for California gay marriage

Elizabeth Cooper in Christian Science Monitor, August 12, 2010

Media Source

Billy Bradford of Castro Valley, Calif., waves a pair of flags outside City Hall while same-sex couples line up to see if they can be married in San Francisco, Thursday.

Eric Risberg/AP

By Andrew Heining, Staff writer / August 12, 2010

Los Angeles

US District Judge Vaughn Walker refused Thursday to extend a stay – placed on his ruling that declared California’s gay-marriage ban unconstitutional – beyond next week.

Skip to next paragraph
Related Stories

    * Prop. 8 overturned: Why Vaughn Walker ruled against gay-marriage ban
    * Proposition 8: federal judge overturns California gay marriage ban
    * Will California gay marriage ruling affect other states?

The decision clears the way for same-sex marriages to begin again in California on Aug. 18, barring intervention from the US Court of Appeals for the Ninth Circuit.

Judge Walker did not immediately end the stay to give the appeals court time to weigh in on the matter.

While the judge’s decision was greeted with much enthusiasm by opponents of Proposition 8, the voter-approved gay-marriage ban, there was certainly some disappointment among the many unmarried same-sex couples who were lining up at court houses and clerks’ offices in anticipation of the stay being lifted Thursday afternoon.

"[Walker's] opinions make exceptionally clear why Proposition 8 fails Constitutional examination, and he has made even more clear how the [proponents of the ban] don't satisfy his requirements for staying his opinion of last week," says Elizabeth Cooper, a Fordham University law professor.

"It's excruciating to be ready to get married and be denied the right to, and I think Walker recognizes that in his initial opinion," she says. But rather than an acknowledgment of the merits of Proposition 8 supporters' case, she says the delay is meant as a procedural courtesy to the court of appeals.

Walker declared Proposition 8 unconstitutional in a broad Aug. 4 ruling that may eventually amount to a landmark court decision for gay rights, if it is allowed to stand by the appeals court or eventually the US Supreme Court, where many expect the case to eventually be decided.

The official proponents of Proposition 8 argued in favor of the extending the stay through the appeals process because, they said, not doing so would create legal confusion about the validity of same-sex marriages taking place before the appeals court rules.

Gay marriage supporters said that there are already 18,000 same-sex couples in the state that were married in the period when gay marriages became legal in California and when voters approved Proposition 8 in November 2008.

Proposition 8 backers were quick to criticize Walker's action Thursday.

"It is outrageous that Judge Walker refused to stay his ruling," said Matthew Staver, founder of the Liberty Counsel, a group that advocates for the traditional definition of marriage, in a statement.

"This is a classic example of radical individualism and judicial activism." He said the case had a high probability of being overturned on appeal, setting the stage for an "enormous" disruption. "Staying the effect of Judge Walker’s ruling pending the appeal is the only logical thing to do in this case."

Another sticking point for the granting of a stay – and for the appeal – is the legal standing of those backing Proposition 8. Were the case to be appealed, Walker writes, the "proponents may have difficulty demonstrating ... standing" under the Constitution.

Legal standing, Ms. Cooper explains, dictates "you have to be directly affected by the outcome." According to Walker, the backers of Prop 8 – the "proponents" – have not demonstrated that.

"If anyone is going to be ordered to implement Prop 8, that would have to be the state of California, and the governor and attorney general have made it clear that they have no interest in enforcing Prop 8," says Cooper.

California Gov. Arnold Schwarzenegger and Attorney General Jerry Brown issued separate statements this week calling for Walker's ruling to be put into effect immediately.