We (Almost) Have Marriage Equality: An Analysis of Judge Walker’s Prop 8 Stay Ruling

Posted on 12 Aug 2010 at 7:44pm

Guestblogger ARI EZRA WALDMAN

Ari weighs in on the ruling handed down earlier today by Judge Walker.

Northern District of California Judge Vaughn Walker will enforce marriage equality in California…as of 5 pm Pacific on August 18, 2010.  But for now, same-sex marriages will remain on hold.

Walker But, wait a minute. If the proponents of Prop 8 lost so comprehensively on August 4, why continue the stay? In the words of Judge Walker himself, marriage equality won the day. So, why would a judge delay the enforcement of his own decision. It is really a matter of procedural fairness. Judge Walker recognizes that this is, to paraphrase Vice President Biden, a big [blank] deal and it is only fair in our system to give the parties that lost at trial the opportunity to file their papers with the court of appeals. It also is a sign of respect for the appellate court, which now has time to consider any motion for a stay that they might here in the near future. Plus, this kind of ruling is common, even in civil cases.  It may be frustrating, but Rome wasn't built in a day, and neither were civil rights.

Regardless of the one-week extra delay in same-sex marriages in California, this decision was another momentous step forward for marriage equality. And here are five reasons why.

1.  The stay was denied. 

When lawyers refer to a "stay", they mean a delay in enforcing something. Outside of one more week, which Judge Walker found necessary "to permit the court of appeals to consider the issue in an orderly manner," the stay was denied. Prop 8 proponents had the responsibility of showing that allowing same-sex marriages would do so much harm to them that to go forward with same-sex marriage would be devastating. It's a high hurdle to jump, and Prop 8 proponents barely got off the ground. They admitted that they could not identify any harm to them if marriages licenses were issued. In fact, they relied on apparent harm to same-sex couples, caused by any uncertainty around the availability of marriage rights between now and any appeal. I am heartened that they are thinking so altruistically about same-sex couples here. But, that's not a harm that Prop 8 proponents will feel. In fact, it's barely a harm to anyone at all.

To boil down Judge Walker's ruling, he said that he looked at the possible damage to Prop 8 proponents — all of which he found hypothetical or unsupported at trial — and at the possible damage to same-sex couples — their lack of access to a fundamental right — and found that the damage to same-sex couples was considerably more substantial.

2.  Prop 8 proponents may not "likely" succeed on appeal.

Prop 8 proponents had to show that their appeal had at least a "likelihood" of success. That's a fancy way of saying that the only way a stay can be granted is if your appeal has merit. First, Judge Walker's decision on August 4 so eviscerated every piece of the Prop 8 proponents' case that he could not see any likelihood of success.  

3.  Prop 8 proponents may not even be able to appeal.

Second, and more importantly, Judge Walker notes that Prop 8 proponents may not even have the right to appeal. Lawyers call it "standing", which is not a homage to an R.E.M. song, but rather a way to identify those parties who have been hurt by an adverse ruling at trial and, thus, can ask a court to fix it. As noted here earlier, Governor Schwarzenegger and Attorney General Brown filed papers asking Judge Walker to remove his temporary stay. They are California in this case, they are the ones that have to change their practices as a result of the ruling,  and they don't even want to wait to do so. They want to start issuing marriage licenses to same-sex couples.  Since it is the State of California and not a collection of anti-marriage equality advocates that issue marriage licenses, the only parties that may have the ability to ask the court of appeal to review Judge Walker's decision are those representing the State of California.

Think of it this way. Let's say the San Diego Padres win a game against the New York Mets due to a botched call by an umpire. The win propels the Padres into first place ahead of the San Francisco Giants.  Who can appeal the win to the commissioner's office? Only the Mets. The botched call directly harmed them. They were the injured party. The Giants may have also been affected, but the adverse call didn't happen to them. To put it another way, a man is married to a woman. The man has an affair. Only the embattled wife can sue for divorce. The man's mistress can't ask a court to divorce the couple.

This is important for obvious reasons. The governor's and attorney general's decision to ask Judge Walker to lift the stay pretty much means they agree with the decision and do not want to have any part of an appeal to the Ninth Circuit. The remaining defendants in the Prop 8 case — anti-marriage equality advocates — are the only ones left. They were given a chance at trial to identify what kind of harm they would face if Prop 8 were overturned, but they failed to show any evidence of real harm.  Without any harm, not only do they lose their case at trial, but also they may lack the right to appeal.

And, in 1997, the Supreme Court has indicated that they agree. It was a case that involved a vote on making English the official language in Arizona. The Supreme Court found that initiative proponents, like the anti-marriage equality advocates in this case, do not automatically have the right to appeal a court decision overturning that initiative.

So, will this case be appealed? Don't be so sure.

4. This is another well-reasoned and well-supported decision from Judge Walker.

Nevertheless, Prop 8 proponents will try to appeal. They will also try to get the Ninth Circuit to do what Judge Walker refused to do, i.e., grant the stay. But, just like I discussed after Judge Walker's ruling last week, his decision was so well-written that an appellate court would be hard-pressed to defy him. I see that again here. Prop 8 proponents' inability to provide any evidence that they would be harmed by marriage equality in California is all over this decision and it was the fatal flaw in their argument, both at trial and for a stay. There simply is not enough evidence of real or expected harm to justify a stay.

5. This was a reaffirmation of marriage equality.

Judge Walker said it best: "[T]he trial record left no doubt that Proposition 8 inflicts harm on plaintiffs and other gays and lesbians in California. Any stay would serve only to delay plaintiffs access to the remedy to which they have shown they are entitled." Amen.

What happens now? 

Prop 8 proponents have already stated on CNN, MSNBC and Fox News that they plan on asking the Ninth Circuit for a stay and, if necessary, the Supreme Court. But any appellate court will first have to address the threshold question of whether they have the right to ask a higher court for a stay. It is unclear whether they have standing to appeal, as discussed above. Given that, here is one possible scenario of how this will play out, step-by-step:

Motion to Ninth Circuit for stay. If denied, motion to the Supreme Court. If granted, filing papers for a substantive appeal of the decision itself. If the Ninth Circuit finds Prop 8 proponents have no right to appeal, they may appeal that ruling to the Supreme Court, or the case ends with Judge Walker's ruling in place permanently. This may take 1-2 years.

If the Ninth Circuit finds Prop 8 proponents do indeed have the right to appeal, a three-judge panel of the Ninth Circuit will hear that appeal. Either way, the case will probably be then heard by a larger panel — perhaps, 11 — of judges. Then, the case may go before the Supreme Court. This may take up to 3-5 years.

Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His area of expertise are criminal law, criminal procedure, LGBT law and law and economics.


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