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Judge Doubts Prop 8 Ruling Can Be Appealed

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Judge Walker: I Doubt Prop 8 Ruling Can Be Appealed

PAUL ELIAS and LISA LEFF | 08/13/10 12:03 PM | AP

SAN FRANCISCO — The federal judge who overturned California's same-sex marriage ban has more bad news for the measure's sponsors: he not only is unwilling to keep gay couples from marrying beyond next Wednesday, he doubts the ban's backers have the right to challenge his ruling.

Chief U.S. District Judge Vaughn R. Walker on Thursday rejected a request to delay his decision striking down Proposition 8 from taking effect until high courts can take up an appeal lodged by its supporters. One of the reasons, the judge said, is he's not sure the proponents have the authority to appeal since they would not be affected by or responsible for implementing his ruling.

By contrast, same-sex couples are being denied their constitutional rights every day they are prohibited from marrying, Walker said.

The ban's backers "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," he said. "Proponents have not, however, argued that any of them seek to wed a same-sex spouse."

Walker gave opponents of same-sex marriage until Aug. 18 at 5 p.m. to get a ruling from the 9th U.S. Circuit Court of Appeals on whether gay marriages should start before the court considers their broader appeal. Their lawyers filed a request asking the 9th Circuit to intervene and block the weddings on an emergency basis late Thursday.

They argued the appeals court should grant a stay of Walker's order requiring state officials to cease enforcing Proposition 8 "to avoid the confusion and irreparable injury that would flow from the creation of a class of purported same-sex marriages."

Depending on how the 9th Circuit rules, same-sex couples could begin tying the knot in California as early as next week or be put off while the appeal works its way through the court and potentially the U.S. Supreme Court as well.

California voters passed Proposition 8 as a state constitutional amendment in November 2008, five months after the California Supreme Court legalized same-sex unions and an estimated 18,000 same-sex couples already had married.

In refusing to suspend his ruling for more than a few days, Walker agreed with the lawyers who sued to strike down the ban that it's unclear if Proposition 8's sponsors have legal standing to appeal.

Although he allowed the coalition of religious and conservative groups that sponsored the measure to defend the lawsuit during the 13-day trial over which he presided, the judge said appellate courts have different rules for deciding when a party is eligible to challenge a lower court.

Based on his interpretation of those rules, it appears the ban's sponsors can only appeal his decision with the backing of either Gov. Arnold Schwarzenegger or Attorney General Jerry Brown, Walker said. But that seems unlikely as both officials refused to defend Proposition 8 in Walker's court and said last week they see no reason why gay couples should not be able to tie the knot now.

Walker also turned aside arguments that marriages performed now could be thrown into legal chaos if Proposition 8 is later upheld by an appeals court. He pointed to the 18,000 same-sex couples who married legally in the five months that gay marriage was legal in California as proof.

San Francisco Chief Deputy City Attorney Therese Stewart, who during the trial helped argue that Proposition 8 should be overturned, said that while it will not be up to Walker to decide the eligibility issue, "it's very realistic" that the 9th Circuit could reach the same conclusion.

"We allocate the decision-making authority over how to enforce and defend and prosecute the laws to the executive branch," Stewart said. "Do you want every Tom, Dick and Harry second-guessing what the attorney general does and challenging every ruling the attorney general chooses not to?"

The ban's backers addressed the potential for such a roadblock in their emergency stay request, saying California's strong citizen initiative law permits ballot measure proponents to defend their interests when state officials refuse to.

"We are confident we do have standing to seek the appellate review here, and we realize this case has just begun and we will get the decision overturned on appeal," said Jim Campbell, an Alliance Defense Fund lawyer who is part of the legal team defending Proposition 8.

Other legal analysts think the appeals court will allow the group that raised $40 million to pass Proposition 8 to formally challenge Walker's ruling.

"What Judge Walker's ruling means is you can sponsor a proposition, direct it, research it, work for it, raise $40 million for it, get it on a ballot, successfully campaign for it and then have no ability to defend it independently in court," said Dale Carpenter, a University of Minnesota constitutional law professor who supports same-sex marriage. "And then a judge maybe let you be the sole defender in a full-blown trial and then says, 'by the way, you never can defend this.' It just seems very unlikely to me the higher courts will buy that."

Walker's order clearing the way for same-sex marriages to resume in California for the first time since 52 percent of the state's voters approved Proposition 8 nonetheless raised hopes among gay couples who flocked to government offices to await word that they soon will be able to exchange vows.

"We just want equal rights. We're tired of being second-class citizens," said Amber Fox, 35, who went to the Beverly Hills Municipal Courthouse on Thursday morning in hopes of marrying her partner. The couple wed in Massachusetts in June but wanted to make it official in their home state.

Teresa Rowe, 31, and her partner, Kristin Orbin, 31, said they were still happy with the decision even though the ceremony didn't happen. The couple went to San Francisco City Hall early Thursday morning to fill out a marriage license application.

"It's sad that we have to wait a little longer, but it's been six years," Rowe said.

http://www.huffingtonpost.com/2010/08/13/judge-walker-i-doubt-prop_n_681224.html

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...he doubts the ban's backers have the right to challenge his ruling.

That comment by the judge is, at best, wishful thinking and, at worst, simple ignorance. While I support the constitution being changed to allow same-sex marriages, the opinion of the District Judge won't (in my view) be the law very long (only until the Court of Appeals reverses it or, if by chance that doesn't happen, until the US Supreme Court surely reverses it).

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That comment by the judge is, at best, wishful thinking and, at worst, simple ignorance. While I support the constitution being changed to allow same-sex marriages, the opinion of the District Judge won't (in my view) be the law very long (only until the Court of Appeals reverses it or, if by chance that doesn't happen, until the US Supreme Court surely reverses it).

I have several members of my immediate family who are gay and lesbian. One of them resides in California. I expect and hope that this judges ruling will stand. I also expect to see this the law of the land before my teenage children enter college. They were brought up to love and respect everyone and they love their gay uncle. To me and to them, laws like this have no place in modern society and it will be up to the judges to give these rights to gays and lesbians. Unfortunately, the American people do not yet see how unjust or arcane these laws are.

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I have several members of my immediate family who are gay and lesbian. One of them resides in California. I expect and hope that this judges ruling will stand. I also expect to see this the law of the land before my teenage children enter college. They were brought up to love and respect everyone and they love their gay uncle. To me and to them, laws like this have no place in modern society and it will be up to the judges to give these rights to gays and lesbians. Unfortunately, the American people do not yet see how unjust or arcane these laws are.

As I noted, I share your views about what is fair; however, that's not what this is all about - what it's about is whether the federal constitution as written (versus what some may wish it would say) somehow says that the state of California is not allowed to decide what constitutes a valid marriage. Given there is no federal right whatsoever involving marriage and given the federal courts have previously ruled that marriage is a state decision and not a federal decision (and mainly for the reason that the 10th Amendment expressly states that all powers not given expressly under the US Constitution to the federal government are reserved to the states), I'll fall off a chair if the decision is upheld on appeal. Time will tell on this but I see no (zero) chance this will be upheld by the US Supreme Court (Scalia, Roberts, Alito, and Thomas are 100% sure "no" votes and Kennedy has previously sided with that conservative four each time any federal court has attempted to limit state powers or create some new constitutional right).

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