They're getting married in the morning (of August 18th)

Carla Axtman

Most here are likely aware that U.S. District Judge Vaughn R. Walker ruled last week that California Proposition 8 is an unconstitutional double-standard. Details and the BlueO conversation about the original ruling can be found at Evan Manvel's great post on the topic.

Earlier today, Judge Walker refused to permanently stay his ruling overturning Prop 8. Instead, Walker issued a temporary hold through August 18 to give supporters time to appeal:

U.S. District Judge Vaughn R. Walker, who overturned the measure on Aug. 4, agreed to give its sponsors until Aug. 18 to appeal his ruling to the U.S. 9th Circuit Court of Appeals. No new marriages can take place until then.

Walker said the sponsors of Proposition 8 do not have legal standing to appeal his order because they were not directly affected by it.

"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," Walker wrote.

"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 jurisdiction."

Shorter Walker: Gays & Lesbians, fire up your wedding plans.

(C'mon Oregon, you should be doing this too)


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    The interesting thing in todays ruling on the stay, is that it shows that the Prop 8 folks might not even have standing to appeal to the 9th at all. From the ruling:

    If [] no state defendant appeals, proponents will need to show standing in the court of appeals. See Arizonans for Official English, 520 US at 67. Proponents’ intervention in the district court does not provide them with standing to appeal. Diamond, 476 US at 68 (holding that “Diamond’s status as an intervenor below, whether permissive or as of right, does not confer standing to keep the case alive in the absence of the State on this appeal”); see also Associated Builders & Contractors v Perry, 16 F3d 688, 690 (6th Cir 1994) (“The standing requirement * * * may bar an appeal even though a litigant had standing before the district court.”). The Supreme Court has expressed “grave doubts” whether initiative proponents have independent Article III standing to defend the constitutionality of the initiative. Arizonans for Official English, 520 US at 67.

    Basically that is saying that if the State of California doesn't appeal to prevent the ruling that Prop 8 is indeed unconstitutional to the 9th Circuit Court, the Prop 8 folks may not have standing to appeal to the 9th Circuit on their own since they have not shown they themselves will face the kind of injury required for Article III standing to appeal.

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      The question this raises is: is the likely failure to appeal a good thing?

      Yes, it'd mean that Walker's ruling would stand... and that'd be great for Californians. But that would also mean that it would only affect Californians.

      If it were appealed then that would (likely) force the hand of the USSC, whereas the lack of an appeal would allow the conservatives on the court to delay the inevitable for God knows how much longer.

      I'm wondering if the greater good might not be served by the state appealing just to force the issue on up the chain of command, so to speak.

      Schwarzenegger and Brown are both on record as approving of Walker's ruling. And I see nothing that would force them to offer a spirited appeal. They could offer a distinctly lackluster appeal to help entice the USSC to take it up so that we could potentially get a nation-wide ruling that would affect everyone instead of just Californians.

      The risk, of course, would be that the USSC could issue a 21st Century version of the Dred Scott ruling that would hinder Californians as well as everyone else.

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        I'm all for letting this decision stand without appeal. It will only affect California, but other people in other states may (and probably will) use the decision as authority in bringing their own suits elsewhere.

        Eventually, cases will start trickling upwards through the federal appellate system, and eventually will land before the Supreme Court.

        But the later that happens, the better. TIme is on the side of equality here. Delay gives more time for political support for marriage equality to grow (politics does affect Supreme Court decisions), and it also raises the chances that Obama could replace at least one right-wing justice.

        Meanwhile, I hope that Oregonians will get a chance to repeal our own anti-equality amendment in 2012. The odds are good that a (small) majority would support repeal by then. The measure passed 58-42 back in 2004, and shifting demographics alone should shift that number at least 8% in favor of marriage equality. All things being equal, I'd rather see the majority of the people vote to do the right thing than have a judge settle it.

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          I can definitely see the real politick pragmatism in that argument. But delay would also mean the delay of basic rights for many citizens.

          Understand that I'm basically thinking out loud here - as opposed to indicating a strong preference for any one particular avenue.

          That said... it seems to me that basic rights ought not be subject to a popularity vote. I subscribe to the Jeffersonian ideal of inalienable rights, over which no citizen or group of citizens has the right to reject or deny... except, of course, to the extent that said right(s) possibly interfere with another's right(s).

          A corrolary here would be the Civil Rights Act, which was not subject to a popular vote either and which might not have survived a popular vote had it been subject to it.

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            I can definitely see the real politick pragmatism in that argument. But delay would also mean the delay of basic rights for many citizens.

            Agreed. This ruling if it is held, could and would be used in other circuit courts as precedence, and if contradictory rulings could also force a SCOTUS case to resolve the 9th saying one thing, and say the 4th saying the opposite.

            But as you point out int he mean time, real lives would still be being subjected to real, unconstitutional and unjust discrimination as the "pressure" would build up to force the issue into the higher courts. The quicker the path to ending the discrimination nationally the better and I suspect that would be if they have standing, appeal to the 9th, 9th sides with the lower courts ruling that Prop 8 is unconstitutional on grounds of the 14th amendment, and that gets kicked up to the SCOTUS on appeal and is decided finally, ala Loving v. Virginia.

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          There's also a political/legal strategy here that relates to contract law. I'm not a lawyer, but I'm sure there are arguments that suggest that a marriage (a contract) valid in one state would be valid in other states. So, even California's move here sets the stage for legal cases in other states.

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            That is does, though a Full Faith and Credit clause case could have been brought up years ago since other states have had same-gender marriage for a while now. That would however run directly at DOMA which has never had its Constitutionality challenged in court yet (it is blatantly unConstitutional in my view) and indirectly tied to this ruling/case.

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              Actually, I think that if you check you'll find that Federal District Court Judge Joseph Tauro, Massachusetts, ruled on July 8, 2010, that DOMA violates both the 5th and 10th Amendments. His entry of final judgment on Friday was overshadowed by Judge Walker's termination of stay.

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        Brown cannot intentionally offer a lackluster appeal or he'd be broaching several rules of professional conduct.

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    By what right did the federal government get involved in sanctioning what is basically a religious ceremony anyway? Marriage should be between loving couples regardless gender.

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      This is one of those exceedingly rare times when I wish I could add 10 "like it's"! Particularly the part about the government sanctioning a religious ceremony. The irony is that they turned a "rite" into a "right".

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