Northern District Chief Judge Vaughn Walker
Image: Jason Doiy / The Recorder
Chief Judge Vaughn Walker today denied a motion to stay his decision overturning California's ban on same-sex marriage ( .pdf ).
But Walker stayed entry of judgment until Aug. 18 at 5 p.m., giving proponents a window in which to appeal his ruling on the stay to the 9th U.S. Circuit Court of Appeals.
In his order, Walker observed that Prop 8 proponents may lack standing : "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 appellate jurisdiction."
The decision on the stay came out after a morning of online reports describing a growing line of hopeful couples congregating at City Hall in San Francisco.
Proponents of the ban on same-sex marriage had asked Walker to stay his Aug. 4 decision while they pursue an appeal. They'll now almost immediately take their case for an emergency stay to the 9th Circuit, said appellate specialist Jon Eisenberg.
The appeal would likely be heard by the motions panel for the month of August -- made up of Senior Judge Edward Leavy, a Reagan appointee, and two Clinton appointees: Judges Michael Hawkins and Sidney Thomas.
Both Gov. Arnold Schwarzenegger and Attorney General Jerry Brown took positions against the stay last week, with Brown declaring in a court filing that "the harm to the plaintiffs outweighs any harm to the state defendants."
That raises the question of standing, legal scholars said: With the government defendants saying they won't appeal, do the proponents of Prop 8, as intervenors, have standing?
Whatever the proponents of Prop 8 file would presumably address the question, Eisenberg said. Then the 9th Circuit would have to decide the standing issue.
"It's a hot issue for them," said Rory Little, a professor Hastings College of the Law. "There is some contrary Supreme Court authority, but it's not directly on point."
If the 9th Circuit panel denies the stay, the Prop 8 proponents could ask U.S. Supreme Court Justice Anthony Kennedy for an emergency stay. But the standing issue is integral to the question of whether the proponents are likely to prevail on appeal, so it could present them with a dangerous path if they push the issue to the Supreme Court in that way.
"Both sides have a fair amount to lose if they push too far too fast on an emergency basis," said Little.
