Stay expires Aug. 18 and gay marriages can recommence —unless 9th Circuit stays ruling again

Lisa Keen  |  Keen News Service

Supporters of marriage equality
GETTING THE NEWS | More than 100 supporters of marriage equality gathered outside the San Francisco City Hall on Thursday, Aug. 12, shout with joy as they hear the news that Judge Vaughn Walker declined to extend a stay of his ruling overturning California’s anti-gay-marriage amendment known as Proposition 8. Activists had been waiting the entire morning before the decision was announced at 12:37 p.m. PST. Unless the 9th Circuit Court of Appeals issues a separate stay, same-sex marriages can begin after 5 p.m. Wednesday, Aug. 18. (Rick Gerharter)

There were cheers outside San Francisco City Hall at 12:24 PST Thursday afternoon, Aug. 12, as news emerged that U.S. District Court Judge Vaughn Walker had denied a request to delay enforcement of his ruling against Proposition 8.

But those cheers were muted a few minutes later when details of the judge’s order were revealed.

Walker continued to delay enforcement of his decision until Aug. 18, the date the stay was originally scheduled to expire. The delay gives the Yes on 8 supporters of the measure ample time to seek a stay from the 9th Circuit or even the U.S. Supreme Court, if necessary.

The order essentially “split the baby” — giving both sides of the same-sex marriage lawsuit something.

Attorneys challenging the anti-gay marriage constitutional amendment wanted Walker to deny the stay and bar the government from enforcing Proposition 8 immediately.

Attorneys defending Proposition 8 wanted Walker to grant an extended stay until the 9th Circuit U.S. Court of Appeals could rule on the merits of the case.

Many same-sex couples, who had gathered outside San Francisco City Hall and elsewhere around the state since before dawn, attempted to apply for marriage licenses following initial news of Walker’s order. But news reports from CBS and
others indicated that city officials were not yet processing the applications, saying they had not yet received Walker’s ruling. Parties on both sides of the debate over Proposition 8, which was passed by voters in November 2008, have been waiting since Aug. 4, when Walker issued his ruling that the voter-passed amendment to the state constitution violated the federal constitution’s guarantees of equal protection and due process.

Immediately after issuing that ruling, Walker granted a request for a temporary stay — meaning he would not officially “enter” his judgment in Perry v. Schwarzenegger until he had a chance to consider the request for an extended stay.

Many observers believed Walker would issue an extended stay pending a 9th Circuit ruling in the case. But last week’s decision by California Gov. Arnold Schwarzenegger and Attorney General Jerry Brown to oppose a stay was seen by many as tipping the balance.

Judge Walker’s decision on the merits of the case and on whether to limit the stay until Aug. 18 are unlikely to be the final words on the matter. Attorneys for Yes on 8 have already begun the process of appealing the merits of the decision, and they are likely today to appeal Walker’s ruling concerning a stay.  

© 2010 by Keen News Service. All rights reserved.

What they had to say: Reaction to Judge Walker’s refusal to extend the stay

Dallas activist Vivienne Armstrong, who married her longtime partner and fellow activist Louise Young in California in 2008, before Proposition 8 was passed:
“This is a good thing. It could be a stop-and-start process, just like with all the other rights we have had to fight for. It’s one step at a time — one step forward, one step back. But this is a very good thing. For those people who live in California who can enjoy those rights, it’s wonderful. Just think, if you get married a week from today in the state of California, your rights become immediate at that point in time, and you don’t have to have a lawyer and thousands of dollars to get those rights. It’s more than just being able to visit a partner in the hospital.”

Eric Crawford, Dallasite who is founding Marriage Equality Dallas:
“I am very excited. I definitely think it is a step in the right direction. I am hopeful it won’t be appealed and that people can start getting married next week, because the more same-sex couples that get married, the more of a good example it sets for other states and the Supreme Court. It proves that we have gotten married and the sky hasn’t fallen and the world will go on.”

Erin Moore, president of Stonewall Democrats of Dallas:
“It’s up to the appeals court now. He was very assertive in his ruling, and he was equally assertive in this decision, too. The stay in the first place was mostly a courtesy. Unless the 9th Circuit takes it up and does it quickly, people are going to start getting married again in California. And the more people that get married, the harder it’s going to be to rule against us, and the more it makes the case that we are not a threat to the fabric of society, so get over yourselves.”

Rafael McDonnell, strategic communications and programs manager for Resource Center Dallas:
“We are heartened by the judge’s ruling. This is another case where he has looked at the arguments of those who would deny us the right to marry and has picked them apart. He said there is no basis for issuing the stay. Delaying a few days allows other courts to weigh in, but the fact that he included the statement that these intervenors don’t have standing to appeal is also heartening.
“This case may not be on the fast-track to the Supreme Court. Without someone who has standing to appeal, it may not directly affect us here in Texas. Still, nothing takes away from the fact that this is an important decision in our continuing fight for marriage equality and civil rights.”

Theodore B. Olson, co-lead attorney in the federal case challenging Proposition 8:
“The overwhelming evidence at trial established beyond any doubt that Proposition 8 denies gay men and lesbians the fundamental right to marry and treats them unequally, without any rational basis for doing so, and that it causes them irreparable and immediate harm. The court’s decision today recognizes that there is no reason to delay allowing gay men and lesbians to enjoy the same rights that virtually all other citizens already enjoy.”

California Gov. Arnold Schwarzenegger:
“I am pleased to see Judge Walker lift his stay and provide all Californians the liberties I believe everyone deserves. Today’s ruling continues to place California at the forefront in providing freedom and equality for all people.”

Jennifer C. Pizer, National Marriage Project director for Lambda Legal:
“Although we’re disappointed that Judge Walker elected today to give the Ninth 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. 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.”

Rea Carey, executive director of the National Gay and Lesbian Task Force:
“This is a remarkable moment, stemming from the landmark ruling declaring Proposition 8 unconstitutional. That decision came down to a simple yet profound principle: People should be treated equally under the law. Lifting the stay puts that principle into practice. We thank the judge for his continuing sense of fairness and sound reasoning in this case.”

• Joe Solmonese, president of Human Rights Campaign:
“Lifting the stay will put into action Judge Walker’s basic premise that the state can’t discriminate against same-sex couples. Californians deserve equality and they deserve it now. Ending the enforcement of this discriminatory and unconstitutional law will once again treat same-sex couples as full citizens of California. We look forward to the day when this becomes the permanent and unassailable reality for every family.”

• Michael B. Keegan, president of People For the American Way:
“California’s ban on gay marriage was unconstitutional and unjust, as Judge Walker’s detailed and well-reasoned opinion in Perry v. Schwarzenegger made clear, and there is absolutely no good reason to continue an unconstitutional injustice. We commend Judge Walker for refusing to grant a permanent stay on marriage for same sex couples. His decision today is an important statement of confidence in the strong case for marriage equality. The Ninth Circuit Court of Appeals should not only refuse to extend the stay, but find that Proposition 8’s backers lack the standing to pursue their appeal.”

• Mitchell Gold, founder of Faith in America:
“We applaud Judge Walker’s responsible handling of the stay regarding Prop 8. Clearly his ruling that Proposition 8 violates Constitutional rights is a landmark opinion and it deserves careful deliberation. No longer will religious-based objections to marriage be a justification for the government to keep the right to marriage away from same-sex couples. Today is another historic day.”

• Evan Wolfson, executive director of Freedom to Marry:
“We are witnessing a growing consensus in America that loving and committed same-sex couples deserve the same respect and the same rights as everyone else. Americans on all sides of the aisle, from Laura Bush to Bill Clinton, have embraced the reality that the freedom to marry helps families, while hurting no one. As same-sex couples in California today celebrate their love, commitment, and equal protection under the law, a majority of Californians and a majority of Americans support their right to marry.”

This article appeared in the Dallas Voice print edition August 13, 2010.