Judge lifts stay in Prop 8 ruling; gay marriage could resume August 18


Gay marriage in California could resume next week as a federal judge today denied defendant’s motion for a permanent stay to his decision to overturn Proposition 8, the 2008 ballot measure that reinstated the ban on same-sex marriage, but extended the temporary stay another week.

Unless another stay is ordered by a higher court, today’s ruling creates a new window of opportunity for same-sex couples to marry, similar to May 2008, when the State Supreme Court overturned California’s ban on same-sex marriages. About 18,000 couples were married before Proposition 8 was passed by 52 percent of the vote that November.

Gay and lesbian couples lined up at San Francisco City Hall all morning in anticipation of today’s ruling, and officials in San Francisco, Los Angeles, and other jurisdictions indicated that if Walker lifted the stay, they would be performing marriages today on a first come, first serve basis.

But the Judge’s ruling extended the temporary stay until 5 p.m. next Wednesday, August 18, effectively allowing Proposition 8 supporters time to appeal his decision to 9th U.S. Circuit Court of Appeals, and dashing the hopes of hundreds of gay couples hoping to marry today.

Judge Walker

In today’s order, U.S. District Judge Vaughn Walker wrote:

“Because proponents fail to satisfy any of the factors necessary to warrant a stay, the court denies a stay except for a limited time solely in order to permit the court of appeals to consider the issue in an orderly manner.”

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. … 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.

Final stay order here (PDF).

Walker ruled last week that Proposition 8 was in violation of the U.S. Constitution’s 14th Amendment which guarantees of equal protection and due process of law.

In his decision, Walker said “moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians.”

But shortly after issuing his ruling, Walker issued a temporary “stay,” effectively leaving Prop 8 in tact while he considers whether his ruling should remain on hold as the case moves to the appellate court.

Walker’s ruling is expected to be appealed to the 9th Circuit Court, where it would be reviewed by a 3-person panel and their decision could be appealed to the full 9th Circuit and eventually the U.S. Supreme Court.

In the meantime, the 9th Circuit Court, however, could issue its own stay and prevent marriage licenses from being issued on August 18.

Proposition 8 supporters indicated last week they would also ask the appeals court and the U.S. Supreme Court for an emergency stay if to block same-sex marriages from occurring should Walker lift the stay.

Because the U.S. Supreme Court is not in session until October, the decision about lifting the stay is likely to be appealed to the lead Justice over the 9th Circuit, which is Justice Anthony Kennedy.

“It is clear that there is no basis for a stay of Judge Walker’s ruling striking down Prop 8,” according to a statement from Kate Kendell, Executive Director of the National Center for Lesbian Rights. “We hope that the Ninth Circuit will agree that no stay is warranted and will allow marriages to resume. The chance for same-sex couples to marry again is not only fair and just, but an affirmation of love and basic humanity.”

More on this story as it develops.

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