The federal judge who ruled that California Prop. 8 violated the U.S. Constitution, and who temporarily stayed his ruling pending further arguments, has now denied the motion to stay entry of judgment of his decision.

Judge Vaugh R. Walker just entered an Order which would allow California officials to begin issuing marriage certificates to same-sex couples. BUT, he stayed all further proceedings until August 18 to give time for an application to the 9th Circuit.

None of the factors the court weighs in considering a motion to stay favors granting a stay. Accordingly, proponents’ motion for a stay is DENIED. Doc #705. The clerk is DIRECTED toenter judgment forthwith. That judgment shall be STAYED until August 18, 2010 at 5 PM PDT at which time defendants and all persons under their control or supervision shall cease to apply or enforce Proposition 8.

There are some interesting issues raised by the stay. Judge Walker found that the parties seeking a stay may not have “standing” to appeal, meaning that they may not have a protectable interest since state officials were not also appealing:

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.

This highlights the unusual nature of the litigation, in which state officials charged with enforceing state law refused to defend Prop. 8 in federal court. The consequences are not that predictable, as the case makes its way up on appeal. Some possibilities are that the 9th Circuit could deny a stay and the appeal on this basis; or alternatively it calls into question whether there ever should have been a trial since no party with standing opposed the lawsuit.

As to the second part of the test for a stay, Judge Walker again emphasized that the State was not claiming any harm:

Both plaintiffs and the state defendants have disavowed the harms identified by proponents.

The posture in which this case is being presented on appeal makes the course of an appeal very unusual. There is a collusive aspect to the litigation, in which none of the parties Judge Walker deemed to have standing actually had a controversy.

I’m not prepared to take a position yet on how this standing issue will affect the appeal, it’s just too complicated; but it is clear that there are some serious legal issues before an appeals court or the U.S. Supreme Court would even reach the merits of whether Prop. 8 violated the U.S. Constitution.

Perry v. Schwarzennegger – Judge Walker Order Re Stay
Related Posts:
Ted Olson May Be Too Smart By Half
Deconstructing Marriage
Fed Judge Finds Calif. Prop. 8 Unconstitutional

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