Issue:  Vol. 48 / No. 8 / 22 February 2018

Breaking news: Judge lifts stay of Prop 8 ruling but delays weddings


Chief U.S. District Court Judge Vaughn Walker. Photo: Rick Gerharter
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The federal judge who ruled last week that California's ban against same-sex marriage was unconstitutional lifted the stay of that decision Thursday, August 12. But he delayed allowing same-sex couples to once again begin marrying in the Golden State until August 18 at 5 p.m.

The decision allows time for opponents of same-sex marriage to ask the 9th Circuit Court of Appeal to re-impose the stay. The matter likely will land before the U.S. Supreme Court.

Chief U.S. District Court Judge Vaughn Walker issued his decision at 12:37 p.m. Thursday morning.

"Because proponents 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 this issue in an orderly manner," wrote Walker.

In a statement e-mailed to reporters before Walker had officially announced his decision, Evan Wolfson, executive director of Freedom to Marry, hailed the judge's decision to make California the sixth state where same-sex couples can marry.

"As the governor, the attorney general, and Judge Walker have all concluded, there is no good reason to continue excluding same-sex couples from marriage. Same-sex couples across California can once again share in the respect and personal significance of marriage, as well as the critical safety net of protections and responsibilities that marriage will bring to their families," stated Wolfson, who was involved in the very first marriage case involving Hawaii in the 1990s.

Openly gay state Senator Mark Leno (D-San Francisco), who twice tried to get the governor to sign a same-sex marriage bill into law, sounded confident that the stay would be lifted in a statement his office issued shortly after Walker's released his ruling.

"I am elated that I will again have the opportunity to perform ceremonies for caring and devoted couples who want nothing more than to honor their love in a universally understood way – through marriage," stated Leno. "This is a long awaited and hard fought victory in the larger civil rights movement for marriage equality, but it is not the last. The promise of our treasured democracy, liberty and justice for all, has been fulfilled today. Let the summer of love begin."

Schwarzenegger praised Walker's decision, saying he was pleased the judge lifted the stay.

"Today's ruling continues to place California at the forefront in providing freedom and equality for all people," the governor said in a statement.

On the other had, Lambda Legal Defense and Education Fund said it was "disappointed" in Walker's decision to impose a six-day hold on the ruling.

"Although we're disappointed that Judge Walker elected today to give the 9th Circuit Court of Appeals a chance to consider the issue of the stay, we are gratified that he has denied the request to put his historic ruling on hold during any appeals," Lambda Legal's marriage director Jennifer C. Pizer said in a statement. "He has applied the standard legal tests in the standard way and reached the only logical conclusions given the overwhelming evidence produced at trial: nobody is harmed – especially not the backers of Prop 8 – by restoring equality in marriage to California's same-sex couples. Nobody suffers when everyone is treated equally. There's enough equality to go around."

Pizer also said the 9th Circuit has a standard to meet in making its decision.

"To maintain the stay, the 9th Circuit will have to find that Prop 8's proponents are likely to win on appeal or will suffer irreparable harm if same-sex couples again are allowed to marry."

The losing side in the case will likely appeal the appellate court's decision to the U.S. Supreme Court. According to the National Center for Lesbian Rights, centrist Justice Anthony Kennedy, would hear the appeal because he is the justice designated to hear requests for stays in the Ninth Circuit. The LGBT legal group noted that if Justice Kennedy denied the motion to stay, the proponents of Prop 8 could ask the entire court to rule on the issue.

At San Francisco City Hall, about three-dozen couples waited in line, hoping they would be able to wed. Assessor-Recorder Phil Ting said they were disappointed with the judge's decision to put a hold on the marriages.

"Our heart goes out to the many couples who've waited not just days, but years," Ting said.

Eric Ross was among those waiting. He'd been staking out City Hall all week, just in case the opportunity came. His partner had to fly to New York on business Thursday, but he's taking the first flight back so they can prepare for what they hope will be a marriage next week.

Ross acknowledged that nothing is certain. "It's so complicated," he said. "We have it one minute, then we don't, then we have it, then we don't."

State leaders and lawyers for the plaintiff couples in the case had urged Walker to lift the stay. Governor Arnold Schwarzenegger told Walker in the state's motion to lift the stay that government officials could begin issuing marriage licenses to same-sex couples without any "difficulty or delay."

"Doing so is consistent with California's long history of treating all people and their relationships with equal dignity and respect," wrote the attorneys for the governor as well as Mark B. Horton, director of the state's Department of Public Health and state registrar of vital statistics, and Linette Scott, deputy director of health information and strategic planning for the state health department.

Kimberly D. Richman, an associate professor of sociology and legal studies at the University of San Francisco, said she wasn't surprised that Walker lifted the stay but also gave the opponents of the gay nuptials time to appeal to a higher court.

"I have a feeling he didn't want people to be in limbo, already people are lined up at City Hall, and I am guessing that the legal status of those folks would be in question," said Richman. "I don't know if the 9th Circuit will agree with him; it depends on the three-judge panel they draw."

Same-sex couples had begun lining up outside San Francisco City Hall Thursday morning in anticipation that they would be allowed to marry today.

Couples had also begun gathering in West Hollywood's City Hall, where city leaders of the gay enclave planned to begin marrying people as soon as possible at the city's Kings Road Park.

The scenes at the government buildings mirrored what took place at San Francisco City Hall back in 2004 when Mayor Gavin Newsom ordered city officials to wed same-sex couples and in the summer and early fall of 2008 after the California Supreme Court ruled that the state's anti-gay marriage statutes were unconstitutional.

The gay weddings came to an end November 5 two years ago after a slim majority of voters passed Proposition 8, overturning the state Supreme Court's decision. That led to the federal case being filed in May 2009 when the state high court decided that voters had the right to adopt the anti-gay constitutional amendment.

A nearly four-week long trial took place in Walker's San Francisco courtroom this past January at which testimony was heard from both sides in the fight over same-sex marriage.

In a 138-page decision in the Perry vs. Schwarzenegger case released August 4, Walker found that the voter-approved ban known as Prop 8 violates the U.S. Constitution's equal protection and due process clauses. Walker rejected Prop 8 backers' claims that allowing same-sex couples to marry would harm opposite-sex couples and found that there is "no rational basis" for the state to deny LGBT partners marriage licenses.

He also laid out in his decision findings of fact that same-sex couples are no different from opposite-sex couples "in the characteristics relevant to the ability to form successful marital unions;" determined that domestic partnerships "lack the social meaning associated with marriage;" and found that a person's sexual orientation is "fundamental" to their identity and thus is a "distinguishing characteristic that defines gays and lesbians as a discrete group."

The case was brought forth on behalf of four plaintiffs – a gay male couple from Burbank and a lesbian couple from Berkeley – as well as the city and county of San Francisco.

Schwarzenegger and Attorney General Jerry Brown both refused to defend Prop 8 in court and had requested that Walker lift his stay of the ruling, arguing in court papers they saw no need to refrain from allowing same-sex marriages to occur while the case was appealed.

Equality California Executive Director Geoff Kors stated that the lifting of the stay likely would not have happened if the state lawmakers had opposed doing so.

"There is no doubt that this decision was due, in part, to Governor Schwarzenegger and Attorney General Brown asking the court to lift the stay," stated Kors. "To ensure the state of California maintains its position against this discriminatory measure throughout the appellate process, Equality California will intensify its efforts to elect a pro-equality governor and attorney general.", the group behind the Prop 8 campaign in 2008, defended the anti-gay law at the trial level and sought to keep the stay of the ruling in place. The group has already notified the 9th Circuit Court of Appeal that it intends to seek review of Walker's decision.

But as the Bay Area Reporter reported this week, both the plaintiffs' attorneys and the San Francisco city attorney plan to challenge the Yes on 8 group's ability to appeal. In court papers they have contended they lack standing in the case and cannot appeal the matter.

Imperial County in southern California, which was denied by Walker from defending Prop 8 at trial, is trying to gain standing to appeal the judge's decision.

The legal wrangling is expected to take years to make its way through the appeals process and is expected to land before the United States Supreme Court.

The case is No C 09-2292 VRW.

Matt Baume contributed to this report.

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