Judge Doubts Prop 8 Ruling Can Be Appealed

[TampaYankee]

Judge Walker: I Doubt Prop 8 Ruling Can Be Appealed

PAUL ELIAS and LISA LEFF | 08/13/10 12:03 PM | AP

SAN FRANCISCO — The federal judge who overturned California's same-sex marriage ban has more bad news for the measure's sponsors: he not only is unwilling to keep gay couples from marrying beyond next Wednesday, he doubts the ban's backers have the right to challenge his ruling.

Chief U.S. District Judge Vaughn R. Walker on Thursday rejected a request to delay his decision striking down Proposition 8 from taking effect until high courts can take up an appeal lodged by its supporters. One of the reasons, the judge said, is he's not sure the proponents have the authority to appeal since they would not be affected by or responsible for implementing his ruling.

By contrast, same-sex couples are being denied their constitutional rights every day they are prohibited from marrying, Walker said.

The ban's backers "point to harm resulting from a 'cloud of uncertainty' surrounding the validity of marriages performed after judgment is entered but before proponents' appeal is resolved," he said. "Proponents have not, however, argued that any of them seek to wed a same-sex spouse."

Walker gave opponents of same-sex marriage until Aug. 18 at 5 p.m. to get a ruling from the 9th U.S. Circuit Court of Appeals on whether gay marriages should start before the court considers their broader appeal. Their lawyers filed a request asking the 9th Circuit to intervene and block the weddings on an emergency basis late Thursday.

They argued the appeals court should grant a stay of Walker's order requiring state officials to cease enforcing Proposition 8 "to avoid the confusion and irreparable injury that would flow from the creation of a class of purported same-sex marriages."

Depending on how the 9th Circuit rules, same-sex couples could begin tying the knot in California as early as next week or be put off while the appeal works its way through the court and potentially the U.S. Supreme Court as well.

California voters passed Proposition 8 as a state constitutional amendment in November 2008, five months after the California Supreme Court legalized same-sex unions and an estimated 18,000 same-sex couples already had married.

In refusing to suspend his ruling for more than a few days, Walker agreed with the lawyers who sued to strike down the ban that it's unclear if Proposition 8's sponsors have legal standing to appeal.

Although he allowed the coalition of religious and conservative groups that sponsored the measure to defend the lawsuit during the 13-day trial over which he presided, the judge said appellate courts have different rules for deciding when a party is eligible to challenge a lower court.

Based on his interpretation of those rules, it appears the ban's sponsors can only appeal his decision with the backing of either Gov. Arnold Schwarzenegger or Attorney General Jerry Brown, Walker said. But that seems unlikely as both officials refused to defend Proposition 8 in Walker's court and said last week they see no reason why gay couples should not be able to tie the knot now.

Walker also turned aside arguments that marriages performed now could be thrown into legal chaos if Proposition 8 is later upheld by an appeals court. He pointed to the 18,000 same-sex couples who married legally in the five months that gay marriage was legal in California as proof.

San Francisco Chief Deputy City Attorney Therese Stewart, who during the trial helped argue that Proposition 8 should be overturned, said that while it will not be up to Walker to decide the eligibility issue, "it's very realistic" that the 9th Circuit could reach the same conclusion.

"We allocate the decision-making authority over how to enforce and defend and prosecute the laws to the executive branch," Stewart said. "Do you want every Tom, Dick and Harry second-guessing what the attorney general does and challenging every ruling the attorney general chooses not to?"

The ban's backers addressed the potential for such a roadblock in their emergency stay request, saying California's strong citizen initiative law permits ballot measure proponents to defend their interests when state officials refuse to.

"We are confident we do have standing to seek the appellate review here, and we realize this case has just begun and we will get the decision overturned on appeal," said Jim Campbell, an Alliance Defense Fund lawyer who is part of the legal team defending Proposition 8.

Other legal analysts think the appeals court will allow the group that raised $40 million to pass Proposition 8 to formally challenge Walker's ruling.

"What Judge Walker's ruling means is you can sponsor a proposition, direct it, research it, work for it, raise $40 million for it, get it on a ballot, successfully campaign for it and then have no ability to defend it independently in court," said Dale Carpenter, a University of Minnesota constitutional law professor who supports same-sex marriage. "And then a judge maybe let you be the sole defender in a full-blown trial and then says, 'by the way, you never can defend this.' It just seems very unlikely to me the higher courts will buy that."

Walker's order clearing the way for same-sex marriages to resume in California for the first time since 52 percent of the state's voters approved Proposition 8 nonetheless raised hopes among gay couples who flocked to government offices to await word that they soon will be able to exchange vows.

"We just want equal rights. We're tired of being second-class citizens," said Amber Fox, 35, who went to the Beverly Hills Municipal Courthouse on Thursday morning in hopes of marrying her partner. The couple wed in Massachusetts in June but wanted to make it official in their home state.

Teresa Rowe, 31, and her partner, Kristin Orbin, 31, said they were still happy with the decision even though the ceremony didn't happen. The couple went to San Francisco City Hall early Thursday morning to fill out a marriage license application.

"It's sad that we have to wait a little longer, but it's been six years," Rowe said.

http://www.huffingtonpost.com/2010/08/13/judge-walker-i-doubt-prop_n_681224.html

[TotallyOz]

I have read several articles on this today. I don't think they have standing. If the law is truly upheld, this is the end of the debate. However, never say never.

[Guest zipperzone]

I guess the Mormon church will be busy again, sticking their nose in where it doesn't belong and wasting more millions of their congregation's money.

[BiBottomBoy]

The mormons are insane if they appeal. Think about it if they appeal and it goes to the surpreme court and they lose than that means gay marriage in all 50 states.

[JKane]

The mormons are insane if they appeal. Think about it if they appeal and it goes to the surpreme court and they lose than that means gay marriage in all 50 states.

First, do you understand what the Mormons fundamentally believe? Insane may be a given! But I think they may be quietly trying to distance themselves from this one.

Second, I very much doubt the supreme court would ever make such a broad ruling. The court we all learned about in school, all those major decisions, that idealism, it's hard to imagine again in my lifetime. The question is Prop. 8 in California, which it may be possible for 5 justices to agree is wrong. There is no way they would blow that up into anything larger and if they did they'd not get the 5 votes.

Now there's certainly another fight to be had on DOMA and the idea of a marriage in one state not being honored in another, but they'll do their best not to get dragged into that, and if they do I doubt we'd like the result.

[BiBottomBoy]

The Mormon stuff isn't that bad.

Essentially The Book Of Mormon is just Bible fan fiction.

When people want to write Star Wars fan fiction with plots that are not supported by the films, it doesn't bother me, so why should Biblical fan fiction be an issue?

[JKane]

The Mormon stuff isn't that bad.

Essentially The Book Of Mormon is just Bible fan fiction.

When people want to write Star Wars fan fiction with plots that are not supported by the films, it doesn't bother me, so why should Biblical fan fiction be an issue?

Because the people we are talking about believe it to be the literal word of George Lucas God. But on the other hand, magical zombie Jesus isn't all that much more believable either... At least the Mormons know the provenance and edit history of that part of their fairytale holy book.

[BiBottomBoy]

There is an old joke about the Bible that goes that Jews only like the original movie, but Christians think the sequel was 100 times better. Wish I could remember how it goes.

Because the people we are talking about believe it to be the literal word of George Lucas God. But on the other hand, magical zombie Jesus isn't all that much more believable either... At least the Mormons know the provenance and edit history of that part of their fairytale holy book.