Chief Judge Vaughn Walker (N.D. Cal.), who struck down Proposition 8′s ban on gay marriage in California, has denied a motion to stay his judgment pending appeal. This means that same-sex marriages in California can start
immediately after August 18 at 5 PM, assuming the Ninth Circuit doesn’t grant a stay.
UPDATE (3:45 PM): No immediate gay weddings — see court order below (after the jump). Judge Walker denied a full stay pending appeal, but he did enter a stay of his judgment until August 18, 2010, at 5 PM PDT. This will give Prop 8 proponents time to appeal to the Ninth Circuit…
UPDATE (4:25 PM): Do they have standing to defend Prop 8 on the merits in the appellate court? There is a rub here. Read more after the jump.
A link to the court order and excerpts, after the jump.
UPDATE (3:45 PM): Here is the court’s order. From the conclusion:
None of the factors the court weighs in considering a motion to stay favors granting a stay. Accordingly, proponents’ motion for a stay is DENIED. Doc #705. The clerk is DIRECTED to enter judgment forthwith. That judgment shall be STAYED until August 18, 2010 at 5 PM PDT, at which time defendants and all persons under their control or supervision shall cease to apply or enforce Proposition 8.
UPDATE (4:25 PM): Governor Arnold Schwarzenegger and Attorney General Jerry Brown didn’t defend Prop 8 in the trial court. They are actually in favor of allowing same-sex marriages to proceed.
Do the Prop 8 proponents, who defended the gay marriage ban in the district court, have standing to appeal? From Judge Walker’s ruling on the stay:
Proponents’ intervention in the district court does not provide them with standing to appeal….
As it appears at least doubtful that proponents will be able to proceed with their appeal without a state defendant, it remains unclear whether the court of appeals will be able to reach the merits of proponents’ appeal. In light of those concerns, proponents may have little choice but to attempt to convince either the Governor or the Attorney General to file an appeal to ensure appellate jurisdiction. As regards the stay, however, the uncertainty surrounding proponents’ standing weighs heavily against the likelihood of their success.
And this is just plain funny. From Judge Walker, on the second factor in the stay analysis, irreparable injury:
Proponents also 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…. Proponents have not, however, alleged that any of them seek to wed a same-sex spouse.
UPDATE (3:35 PM): Here’s a statement from Evan Wolfson — Executive Director of Freedom to Marry, and a leading lawyer in the LGBT rights area — on Judge Walker’s ruling lifting the stay in Perry v. Schwarzenegger:
California is now the sixth state where same-sex couples share in the freedom to marry. As the Governor, the Attorney General, and Judge Walker have all concluded, there is no good reason to continue excluding same-sex couples from marriage. Same-sex couples across California can once again share in the respect and personal significance of marriage, as well as the critical safety net of protections and responsibilities that marriage will bring to their families.
Perry v. Schwarzenegger: Final Stay Order [U.S. District Court for the Northern District of California]
BREAKING Prop 8: Walker says no stay on gay marriage [365 Gay News]
Breaking News: California Gay Marriages Start Now– Judge Walker Lifts Stay [Lez Get Real]