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Federal judge to lift stay on California same-sex marriage

By Dwyer Arce

[JURIST] A judge for the US District Court for the Northern District of California [official website] on Thursday refused to issue a stay pending appeal [order, PDF] on last week's decision overturning Proposition 8, the California ban on same-sex marriage [JURIST news archives]. Last week, Judge Vaughn Walker held that the ban violated the guarantees of due process and equal protection [JURIST report] under the US Constitution, but immediately stayed the ruling. In denying the motion to extend the stay pending appeal, Walker considered whether the proponents of Proposition 8 were likely to succeed on appeal and whether they would be irreparably harmed absent a stay. Walker found that the proponents could not meet the first criterion because their standing to appeal the case was doubtful, finding that "nothing in the record shows proponents face the kind of injury required for Article III standing." Without a state party to appeal the decision, Walker found, it was doubtful that the appellate court would be able to rule on the appeal's merits. Walker also rejected proponents' arguments that lifting the stay would cause them harm, finding they had "failed to articulate even one specific harm they may suffer as a consequence" of lifting the stay. Walker concluded that extending the stay would harm the plaintiffs:

Proposition 8 violates plaintiffs' equal protection and due process rights, and the court presumes harm where plaintiffs have shown a violation of a constitutional right. But no presumption is necessary here, as the trial record left no doubt that Proposition 8 inflicts harm on plaintiffs and other gays and lesbians in California. Any stay would serve only to delay plaintiffs access to the remedy to which they have shown they are entitled. ... [A] stay would force California to continue to violate plaintiffs' constitutional rights and would demonstrably harm plaintiffs and other gays and lesbians in California[.]

Under the ruling, Walker ordered the state to cease enforcement of Proposition 8 starting at 5 PM August 18. Immediately following last week's decision, the proponents filed a notice of appeal [text, PDF]. The case will now go to the US Court of Appeals for the Ninth Circuit [official website], which will accept [scheduling order, PDF] appellants' opening brief in November.

On Friday, California Governor Arnold Schwarzenegger, Attorney General Jerry Brown and others filed motions [JURIST report] opposing the stay request. Schwarzenegger and Brown were originally defendants in the lawsuit against Proposition 8, now leaving defendant-intervenors Protect Marriage [advocacy website] and other groups to defend the law. The Alliance Defense Fund [advocacy website], another party defending the law, called the decision a "disappointing one" [press release] which "gut[s] the core of the American democratic system." The organization has stated that it will appeal the case to the Supreme Court if necessary.

Full post as published by JURIST - The Paper Chase on August 12, 2010 (boomark / email).