Judge Vaughn R. Walker, the senior judge of the U.S. District Court of the Northern District of California, has lifted the stay on gay marriage that he imposed the day he struck down California Proposition 8. Passed in 2008, ballot initiative Prop 8. amended the Golden State’s constitution to define marriage as between a man and a woman.
The judge’s own self-imposed ban on same-sex marriage will expire Wednesday, August 17th, allowing proponents of Prop. 8 to make an appeal of his lifting of the stay to the U.S. Court of Appeals for the 9th Circuit.
On August 5th, Judge Walker ruled that Proposition 8 was unconstitutional, in that it violated gay people’s federal constitutional rights under the Due Process and Equal Protection Clauses of the U.S. Constitution. Walker is a conservative with a libertarian streak who was nominated to the bench by President Ronald Reagan and then by President George H.W. Bush when the initial nomination failed, ironically due to his perceived hostility to gay rights.
The losing side in the Prop. 8 case had asked Judge Walker to keep the stay on same-sex marriage in place until the 9th Circuit hears their appeal. Walker compromised by keeping the stay in place for four more business days so they could seek a review of his stay, but he refused to extend it until the appeal of his original ruling was heard. Walker says he doesn’t believe the Prop. 8 proponents have standing to make such an appeal.
The case is unusual in that both California Attorney General Jerry Brown and Governor Arnold Schwarzenegger have consistently refused to defend Proposition 8. This meant that private parties were enlisted to defend the state of California in the lawsuits filed against the gay marriage ban.
Judge Walker permitted the private parties to defend Prop. 8 during the trial, but he pointed out in his most recent ruling that the different rules of appellate courts may deny them standing to appeal his original decision and the lifting of his stay.
Prop. 8 proponents who defended the gay marriage ban in Judge Walker’s court may only be able to appeal if Schwarzenegger or Brown sign off on the appeal, Judge Walker pointed out. It is highly unlikely that they will as neither supports the ban on same-sex marriage.
Judge Walker said that gay and lesbian couples were being denied their constitutional rights if prohibitions on same-sex marriage continue. Prop. 8 proponents had tried to argue that the continued stay on gay marriage was necessary as there would be “harm” resulting from a “cloud of uncertainty” over the validity of any marriages consummated during the appeals process.
Lawyers for Prop. 8 proponents, citing an emergency, filed a request with the 9th Circuit ban same-sex weddings. That request will be heard by a three-judge panel, if it is accepted.
As of Thursday, August 18th, it is most probably that gay and lesbian couples will be able to file for marriage licenses and get married until the case is heard by the U.S. Supreme Court, as the liberal 9th Circuit Court of Appeals is expected to uphold Vaughn’s decision.
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