On August 4th, Judge Vaughn Walker of the U.S. District Court for the Northern District of California, a federal trial court, issued his decision in Perry v. Schwarzenegger concluding that Proposition 8 violates the protections of the U.S. Constitution.  Proposition 8, a state constitutional amendment adopted by California voters in November 2008, stripped same-sex couples of the right to marry.  By declaring Proposition 8 unconstitutional, it seems that Walker has taken the first steps toward the return of marriage equality in California. 

But what has happened and what’s next?  Below are answers to a few frequently-asked questions about this historic case.

  • When does Walker’s opinion take effect?

On August 12th, Walker lifted a temporary stay on his ruling that Proposition 8 was unconstitutional.  In other words, he declared that there was no reason that the Proposition should still be enforced and that marriages between same-sex couples in California should be resumed immediately.  However, in the same order, Walker clarified that his ruling would not go into effect until Wednesday, August 18th at 5:00 PM PDT.

  • Why did Walker issue this delay in the implementation of his order, if he doesn’t believe it should be stayed?

We can’t know for sure, but it seems clear that, at least in part, Walker is allowing proponents of Proposition 8 to appeal to the U.S. Court of Appeals for the Ninth Circuit regarding a potential emergency stay.

  • What does the Ninth Circuit have to do with it?  Can they issue a stay?

The Ninth Circuit is the federal appeals court for California and several other Western states.    They have the right to review decisions issued by the district courts and decide if they are legally and factually sound, overturning those decisions they think are baseless and upholding those they think were correctly decided.  Because  a stay is such a decision, the proponents of Proposition 8 filed an emergency motion for stay on August 12th, asking the Ninth Circuit to overturn Judge Walker’s denial of a stay and, at least temporarily, halt any marriages between same-sex couples from occurring, at least until the Ninth Circuit weighs the merits of the actual case.

  • What if the Ninth Circuit doesn’t issue a stay by the 18th?

If the Ninth Circuit doesn’t issue its own stay by August18th, then Walker’s decision will go into effect.  In other words, marriage equality will once again be a reality in the state of California.  Authorities will be required to issue marriage licenses to same-sex couples and weddings can commence. 

However, it’s also important to note that, just because the Ninth Circuit doesn’t issue a stay by the 18th, doesn’t mean they will not eventually issue one.  It could be the next day or in a week.  August 18th is simply the date that Judge Walker’s decision goes into effect.

  • What does it mean if the Ninth Circuit does issue the stay?

It simply means that nothing will happen until they consider the merits of the case.  That is, they will decide if Judge Walker’s decision declaring Proposition 8 unconstitutional was both legally and factually sound.

  • How long will that take?

We don’t really know.  The Ninth Circuit doesn’t have a time frame in which they have to decide cases.  And further, just because a three-judge panel of the Ninth Circuit rules on the case doesn’t mean that it won’t go back for a hearing by a larger number of judges, called an en banc hearing.  If both of those options are taken, then the case could more than a year before it is finished in the Ninth Circuit.

  • And then the U.S. Supreme Court, right?

Yes, possibly.  We don’t know for sure what shape the case will take and whether either side will choose to appeal the case all the way to the Supreme Court.  Further, the Supreme Court reserves the right to not hear a case.  Thus, even if either side appeals, it’s possible that the Supreme Court will never hear the case.

  • So, I’ve heard that the proponents of Proposition 8 may not have standing to appeal.  What does that mean and who gets to decide?

Anyone who appears before a court must have standing – that is, they must have actually suffered harm, caused by the individual or group they are suing, that they are asking the court to redress in some manner.  In this case, the defendants – Governor Schwarzenegger and other California state officials – chose not to defend Proposition 8, and even argued for Judge Walker not to stay his decision.     

Judge Walker, in his order lifting the stay, indicated that because no government entity is involved with the case, it is possible the proponents of Proposition 8 can’t actually prove that they are suffering any harm.  The issue will be decided by the Ninth Circuit.  No matter which way the Ninth Circuit rules, that decision could be appealed to the Supreme Court.

  • What if the proponents of Proposition 8 don’t have standing?

If the proponents of Proposition 8 do not have standing, then no one can appeal the case and Judge Walker’s decision will go into effect. 

  • What does it mean if the Ninth Circuit doesn’t issue a stay and marriages begin again, but they, or the Supreme Court, later overturn Judge Walker’s decision?

We don’t know for sure.  It is possible that any such marriages may be deemed invalid.  It is therefore very important that all couples who are considering marrying in California before the case is concluded continue to take steps to ensure that their relationship is protected.  One way to do that is to also register as domestic partners in California, a status unaffected by this decision.  California law permits an individual to enter into both a domestic partnership and a marriage, as long as it is the same person. 

  • How can I find out more?

Of course, keep checking the Human Rights Campaign website.  We’ll keep it up-to-date with information as we hear it.  Other useful resources include the National Center for Lesbian Rights, Lambda Legal, and the Prop 8 Trial Tracker.

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