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You are here: Home / Civil Rights / LGBTQ Rights / Gay Rights are Human Rights / Gay Marriage Yesterday, Gay Marriage Tomorrow…

Gay Marriage Yesterday, Gay Marriage Tomorrow…

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This post is in: 

… but never jam gay marriage today? Well, we can all hope that’s changing:

Same sex marriage is legal again in California. Sort of.
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Just a week after ruling that Proposition 8 – a 2008 voter-approved ban on same-sex marriage – was unconstitutional, a federal judge lifted his stay of his decision on Thursday, opening the door for untold numbers of gay couples to marry in the nation’s most populous state. But he delayed implementation of the order to lift the stay until Aug. 18.
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Vaughn R. Walker, the chief judge of the Federal District Court in San Francisco, who invalidated Proposition 8 in last week’s decision, had issued a temporary stay to allow for arguments for and against resumption of same-sex ceremoniesas supporters of the ban pursued an appeal of his decision.
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On Thursday, however, Judge Walker declined to extend that stay, ruling, “The evidence presented at trial and the position of the representatives of the State of California show that an injunction against enforcement of Proposition 8 is in the public’s interest. Accordingly, the court concludes that the public interest counsels against entry of the stay proponents seek.”
[…] __
Both Gov. Arnold Schwarzenegger and Attorney General Jerry Brown had asked the court to lift the stay. “Doing so is consistent with California’s long history of treating all people and their relationships with equal dignity and respect,” Mr. Schwarzenegger’s lawyers wrote in a brief filed Friday.

Reader Interactions

51Comments

  2. 2.

    Comrade Sock Puppet of the Great Satan

    It’s remarkable to me how swiftly opinion on this has shifted. Six years ago, Newsom was getting hammered for giving Bush a wedge issue. Now, it’s almost a 50/50 split, with a majority of women in favor.

    I don’t think it’s gonna be a wedge issue outside of GOP primaries this year, and it’s gonna be a hammer against the GOP by 2012. Let’s get the potential GOP presidential candidates on record saying they hate teh Ghey.

    Congrats to the LGBT movement and its activists, who took homosexuality from being illegal and/or in the DSM-II as a “mental disorder” 40 years ago. It took some balls and ovaries to do it. I wish the Democratic party had the same.

  3. 3.

    gwangung

    I have very little to complain about concerning this ruling (except for the obvious that it had to come to this).

  4. 4.

    KG

    @Comrade Sock Puppet of the Great Satan: it really is impressive, when you think about it. Sullivan had one of those composite polls on gay marriage up today or yesterday, in 1988 it was 75-10 against gay marriage. To make it 50-50 in 22 years is pretty damn impressive; especially when even 10 years ago is was still 65-30 against.

  6. 6.

    Amanda in the South Bay

    There’s a small part of me that is worried, because while I’m mostly sure we’ll prevail with SCOTUS, if we lose, that’s a potentially large number of people who could be in legal and financial limbo because their marriages aren’t valid anymore.

  7. 7.

    trollhattan

    @Comrade Sock Puppet of the Great Satan:

    Especially since the ’08 election, more plainly than before it, the Prop 8 folks have conducted themselves like bullies intent on taking something away that had recently been granted. Their arguments have become increasingly strident and loony, and it’s dragged down the public’s opinion of them with time. They were pretty stealthy before the election, which was quite necessary to pass the thing to begin with.

    “It’s for the kidz.”

    I hope they choke on their squandered Mormon bucks.

  8. 8.

    Bubblegum Tate

    I can’t wait to see the Fox News chyrons for this.

    “Fox News Alert: Gay judge decrees modern civilization to end on Wednesday.”

  9. 9.

    arguingwithsignposts

    @Comrade Sock Puppet of the Great Satan:

    I don’t think it’s gonna be a wedge issue outside of GOP primaries this year, and it’s gonna be a hammer against the GOP by 2012. Let’s get the potential GOP presidential candidates on record saying they hate teh Ghey.

    Which asshole republican was it who said they already had “teh brown illegal” wedge issue, so they didn’t need teh Ghey?

    ETA: @Omnibus – thanks.

  11. 11.

    KG

    @Amanda in the South Bay: if the Supremes reverse the decision, my guess is that they will follow the California Supremes’ ruling from a couple years ago and say that the marriages that took place while the decision was pending are valid.

    I learned long ago not to try and guess what the Supreme Court will do on a particular case, but I’m very interested to see what comes of this. I really hope this doesn’t turn out to be a 5-4 decision; hopefully Olsen can work his magic to convince the conservative block.

  12. 12.

    kommrade reproductive vigor

    The decision. (You could also call it a Secondary Terminus of the Alimentary Canal Installation. Walker writes some elegantly lethal legal prose.)

    Proponents also 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. Doc #705 at 10. Proponents have not, however, alleged that any of them seek to wed a same-sex spouse.

  13. 13.

    JGabriel

    But [Walker] delayed implementation of the order to lift the stay until Aug. 18.

    Anyone know what Walker’s reasoning here was?

    It seems like it’s just enough time for the 9th Circuit to grant an emergency stay pending hearings, rather than time to have the hearings on it. Wouldn’t it have been smarter to end the stay immediately and let the 9th deal with facts on the ground, or delay it slightly longer, say 2 weeks or 30 days, so the 9th would have time to review the decision before making their own?

    This seems to be forcing their hand.

    Maybe I’m wrong, maybe the 6 days is enough time for the 9th’s review. Or maybe the state just needs a week for implementation. I just don’t know, that’s why I ask if anyone knows what Walker’s reasons were.

    Edited to add: Never mind, I’ve got the answer. From Walker’s decision:

    Because proponents fail to
    satisfy any of the factors necessary to warrant a stay, the court
    denies a stay except for a limited time solely in order to permit
    the court of appeals to consider the issue in an orderly manner.

    .

  16. 16.

    KG

    @arguingwithsignposts: I really hate wedge issues, I really do. If only because leaning on them too hard makes it increasingly difficult to govern. Of course, a lot of these assholes are really only interested in winning elections and not in governing, so I can’t say I’m really surprised.

  17. 17.

    MAJeff

    @Amanda in the South Bay:

    It may not get to SCOTUS (and I’m pretty sure we’d lose if it did).

    The issue now is standing. Walker’s decision today basically says that the people who defended Prop8 in court will likely have no standing to pursue and appeal, and that they’ll need to get the Gov or AG on their side. They’ll obviously appeal that, but the odds now are this stands as a California-only decision and doesn’t get to SCOTUS.

  19. 19.

    Tonal Crow

    @MAJeff: I dunno. I think Scalia, in his eagerness to overturn Walker, will blow if he doesn’t get cert., and then will try his damnedest to deny, obscure, and/or explain away his decades-long jihad to narrow standing.

  21. 21.

    arguingwithsignposts

    @Tonal Crow:

    I think Scalia, in his eagerness to overturn Walker, will blow if he doesn’t get cert., and then will try his damnedest to deny, obscure, and/or explain away his decades-long jihad to narrow standing.

    But Scalia doesn’t get to hear the appeal – Kennedy does. Of course, if the prop 8 asshats go full Orly Taitz, that’s another issue entirely.

  24. 24.

    Steve

    It is going to be very, very difficult for the Prop 8 supporters to get around the standing issue in order to prosecute their appeal. It is easier to “intervene” at the trial court level, which is what the Prop 8 supporters did, than to have standing to bring your own lawsuit or to prosecute your own appeal. The State of California would certainly have standing to appeal, mind you, but they don’t want to.

    The Supreme Court decided a similar standing issue 25 years ago in Diamond v. Charles, 476 U.S. 54 (1986). A group of abortion providers sued to overturn an Illinois abortion law. A doctor who opposed abortion intervened at the trial court level in order to defend the law. After the court struck down certain provisions of the law, Illinois declined to appeal, whereupon the anti-abortion doctor tried to appeal and was denied:

    By not appealing the judgment below, the State indicated its acceptance of that decision, and its lack of interest in defending its own statute. The State’s general interest may be adverse to the interests of appellees, but its failure to invoke our jurisdiction leaves the Court without a “case” or “controversy” between appellees and the State of Illinois. Had the State sought review, this Court’s Rule 10.4 makes clear that Diamond, as an intervening defendant below, also would be entitled to seek review, enabling him to file a brief on the merits, and to seek leave to argue orally. But this ability to ride “piggyback” on the State’s undoubted standing exists only if the State is in fact an appellant before the Court; in the absence of the State in that capacity, there is no case for Diamond to join….

    —

    The State of Illinois, by failing to appeal, has indicated no direct interest in upholding the four sections of the Abortion Law at issue here. Diamond has stepped in, attempting to maintain the litigation abandoned by the State in which he resides. Because he lacks any judicially cognizable interest in the Abortion Law, his appeal is dismissed for want of jurisdiction.

  26. 26.

    Tonal Crow

    @arguingwithsignposts: You mean that Kennedy hears emergency requests for stays from the 9th Circuit, don’t you? But I’m pretty sure that a party can reapply for a stay from another Justice if the allotted Justice denies it. (Supreme Court Rule 22(4)) . Also, a Justice can refer the application to the entire Court.

    Scalia will try to get his claws into this anyway he can.

  27. 27.

    Zifnab

    @KG: They’ve been dodging the gay marriage bullet for so long, it’s very possible that the SCOTUS will simply defer to whatever verdict the 9th Circuit hands down.

    That said, this deals with a much larger issue of state amendment versus judicial ruling. In that case, I have absolutely no problem seeing the five GOoPer justices lining up behind Prop 8 just because everyone loves a good lynching, and 7 million California voters (in a state of 50(?) million) means demagogue mandate.

  28. 28.

    kommrade reproductive vigor

    Thanks Steve. I thought when Brown & Ahnold said get rid of this thing, it was pretty much the death knell of any case the Flop 8 crowd would have.

    I’ve been trying to imagine what they might bring to get around that. A gay couple who doesn’t want to get married? Nope. A straight couple that claims their marriage has been harmed? Yeah, that would be amusing. From what I’ve read about Imperial, CA’s participation, they’re going to have a hard time.

  29. 29.

    Zifnab

    @Tonal Crow:

    Scalia will try to get his claws into this anyway he can.

    Um… why? He doesn’t really have a horse in this race, does he? It’s not a corporate issue. It’s not an electioneering issue. For all practical purposes, it’s a non-issue. Hell, I think the Republicans are better off if the ruling goes against them anyway. Then they get to beat the drum against gay marriage AND judicial activism, rather than just whining that gays are trying to take over California.

  31. 31.

    kommrade reproductive vigor

    @JGabriel: It should be more than enough, if they have their act together. Based everything I’ve seen so far, they don’t and never will, but that may be due to the fact that “Waaah! We don’t like it!” doesn’t make for a good legal argument.

    They’re lucky Walker didn’t chase them down and beat them with a gavel because judges hate sloppy shit.

  36. 36.

    JGabriel

    kommrade reproductive vigor:

    It should be more than enough, if they have their act together.

    Now that I’ve read the decision denying stay, I agree. The way it’s presented, the 9th doesn’t have to review the whole 130 page decision overturning Prop 8; it just needs to review the issue of standing and the likelihood of success before deciding whether to grant a stay of their own. Six days should be enough for that.

    Of course, I’m not a lawyer and could be totally off-base, but that’s how I read it.

    .

  37. 37.

    Zifnab

    @Tonal Crow: The way he keeps invoking Planned Parenthood v. Casey, I get the feeling it’s really just Scalia going on a drum beating crusade against abortion. Hell, the way he keeps bring it up, you’d think he voted in the affirmative on the case.

    After that, it really just sounds like Scalia is enjoying using “sodomy” and “fundamental” in the same sentence over and over again.

    I mean, I’m not shocked Scalia voted against Lawrence v Texas. I’m just not clear why he would be so eager to relive it.

  38. 38.

    Omnes Omnibus

    I just read the full Order. The judge does not leave a lot of room for maneuver on the part of the Prop 8 guys, does he?

  39. 39.

    Lysana

    @JGabriel:

    Or maybe the state just needs a week for implementation.

    They don’t, just for the record. Marriage licenses in CA are currently structured as Party A and Party B with check boxes just below to allow each party to designate whether the listed party is a groom or a bride. The software that handles the electronic filing permits two grooms or two brides if that’s how it’s marked.

  41. 41.

    JGabriel

    Zifnab:

    They’ve been dodging the gay marriage bullet for so long, it’s very possible that the SCOTUS will simply defer to whatever verdict the 9th Circuit hands down.

    No, it’s too big. If the 9th accepts it and rules on it, SCOTUS will hear the appeal.

    The only way it doesn’t go to SCOTUS is if the 9th refuses to hear it based on standing. Even then, SCOTUS might hear an appeal to grant standing (or can they? can any lawyers or legal scholars here verify?), but it seems unlikely and it’s hard to see how the Prop 8 supporters could win that one.

    .

  42. 42.

    JGabriel

    @Lysana:

    They don’t, just for the record. … The software that handles the electronic filing permits two grooms or two brides if that’s how it’s marked.

    Thanks for clarifying that, Lysana.

    .

  43. 43.

    Steve

    @kommrade reproductive vigor: Imperial County didn’t have standing because a county clerk’s job is strictly “ministerial” with regard to issuing marriage licenses – they have to do whatever the state tells them to do. They have no discretion, so they don’t have standing to urge the court to accept their preferred definition of marriage.

    As to who might have standing: honestly, any married couple in the universe would have standing, with one teeny tiny caveat. They would have to allege some credible injury to their own marriage from permitting SSM. Unfortunately, no one has ever been able to substantiate that allegation!

    Standing means that you need to have suffered an injury in order to sue. A side effect of this rule is that it’s hard to find a legitimate challenger to a law that doesn’t actually hurt anyone.

  46. 46.

    kommrade reproductive vigor

    @Steve: Thanks for clearing that up.

    Unfortunately, no one has ever been able to substantiate that allegation!

    Right, that was the only scenario I could come up with that they might try that wouldn’t be a straight (har har) repetition of the arguments they made to Walker.

    [Edited – That is, they’d have to produce some people who claimed they suffered harm, not the parade of “experts” used earlier. Even thought it would be stupid I refuse to guess whether they will or won’t.]

  48. 48.

    Tonal Crow

    @JGabriel:

    The only way it doesn’t go to SCOTUS is if the 9th refuses to hear it based on standing. Even then, SCOTUS might hear an appeal to grant standing (or can they? can any lawyers or legal scholars here verify?),

    Yes, the Supreme Court could hear an appeal of a final decision denying standing.

    (This is not legal advice. Consult your favorite lawyer for legal advice.)

  49. 49.

    Omnes Omnibus

    @Tonal Crow: If everyone is looking for a way to let this die, the standing issue is a perfect out. Prop 8 people get to shout technicality, and everyone else gets to go about life with more people have recognized rights.

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