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Prop 8 Gets Brief Reprieve

Proposition 8 got six more days of life Aug. 12.

U.S. District Judge Vaughn Walker in San Francisco refused to issue a stay of his Aug. 4 decision that found Prop 8 unconstitutional. He did, however, add a six-day delay to his original ruling’s taking effect.

That gave the 9th U.S. Circuit Court of Appeals until 5 p.m. on Aug. 18 to decide if it wants to prevent same-sex couples from marrying while Walker’s original ruling is appealed.

Meanwhile, it’s not clear that Walker’s original decision can be appealed.

All of the defendants in the lawsuit — who include Gov. Arnold Schwarzenegger and Attorney General Jerry Brown — have refused to defend Prop 8. The only defenders of the constitutional amendment are intervenors in the lawsuit — the same people who put Prop 8 on the ballot in the first place.

While Walker was willing to let these Prop 8 proponents argue their case at the district-court level, it is possible that they will be found not to have “standing” to appeal to the 9th Circuit or the U.S. Supreme Court.

In denying a stay, Walker wrote: “Proponents’ intervention in the district court does not provide them with standing to appeal. … The Supreme Court has expressed ‘grave doubts’ whether initiative proponents have independent Article III standing to defend the constitutionality of (a ballot) initiative.”

Walker also said the defendant-intervenors failed to meet any of the standard requirements for getting a stay issued. Primarily, the Prop 8 proponents needed to demonstrate a strong likelihood that Walker’s original decision will be overturned on appeal and they needed to prove that they would be irreparably injured without a stay. They did neither, he said.

Walker also said that a stay would harm other people, such as gay couples who want to marry, and that a stay is “not in the public interest.”

The next moves will come from the 9th Circuit, which, among other things, could issue another short stay, could issue a full stay until all appeals have run their course, or could decide that the Prop 8 proponents have no standing to appeal at all, in which case same-sex couples would be able to begin marrying in California immediately and Proposition 8 would be stricken from California’s Constitution.

In striking down Prop 8 on Aug. 4, Walker said it violates the U.S.

Constitution’s guarantees of due process and equal protection under the law.

He said there is no “rational basis” for Prop 8’s existence and that it was inserted into the state’s constitution solely to express “moral disapproval” of gay people.

He blamed pro-Prop 8 campaigners for fueling such disapproval by airing nasty TV ads and distributing material that “relied heavily on negative stereotypes about gays and lesbians and focused on protecting children from inchoate threats vaguely associated with gays and lesbians.”

Prop 8 re-banned same-sex marriage in California in November 2008 after it had been legal for 4 1/2 months.

Gay groups welcomed Walker’s decision not to issue a stay.

“Today’s ruling means that in less than one week, equality under the law will be restored for millions of loving families across California,” said Courage Campaign Chairman Rick Jacobs. “Lifting the stay is ultimately consistent with both legal precedent and the findings in this case.”

Lambda Legal’s Jennifer Pizer said that Walker “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.”

National Center for Lesbian Rights Executive Director Kate Kendell said:

“It is clear that there is no basis for a stay of Judge Walker’s ruling striking down Prop 8. We hope that the 9th Circuit will agree that no stay is warranted and will allow marriages to resume.”

Famed attorney Ted Olson, who led the gay side’s legal team in the lawsuit with attorney David Boies, said: “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.”

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