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Pretty much concurrently with issuing the opinion, Judge Walker also issued a temporary stay that means the ruling doesn't go into effect right away. He asked for written briefs from the parties about whether he should extend the stay until the losers have a chance to appeal the decision, and those were submitted on Friday, August 6. There's no word on when the judge might rule on the issue.
If Judge Walker decides to keep the temporary stay in place, wedding bells will remain silent in the Golden State for some years to come while the case makes its way to the Ninth Circuit Court of Appeals (which has already created a special page for documents related to the Perry case, even though nothing's been filed with them yet) and then, presumably, to the United States Supreme Court. And if he lifts the temporary stay and says that same-sex couples can marry, the other side could appeal that decision to the Ninth Circuit on an "emergency" basis. (Bet you didn't know the possibility of you marrying your same-sex partner could be an emergency, did you?)
Somewhat surprisingly, both Attorney General Jerry Brown and Governor Arnold Schwarzenneger asked Judge Walker to lift the stay and allow same-sex couples to begin marrying immediately.
In the plaintiffs' request to lift the stay, attorneys make an interesting argument. During the trial, the actual defendant in the case, the State of California, declined to defend Prop 8 in court. Instead, a group called "defendant-intervenors," consisting of pro-Prop 8 groups and individuals, defended the proposition at trial. The plaintiffs now argue that the defendant-intervenors, because they are not the original defendants, do not have standing--meaning they don't have the right--to bring an appeal. Professor Arthur Leonard explains this much better than I could at his Leonard Link blog, so I direct you there for the full scoop. If Judge Walker and the Ninth Circuit agree with this analysis, then the opinion will stand--good news for California and for the couples who want to marry right away, but not necessarily for anyone who wants to see the Supreme Court rule on same-sex marriage soon.
Stay tuned for further developments.
Judge Vaughn Walker issued his opinion today in Perry v. Schwarzenegger, the federal challenge to Proposition 8, which in 2008 took away the right of same-sex couples to marry in California. Judge Walker's 136-page opinion holds that Prop 8 does not pass constitutional muster because it "unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation." The court held that the right to marry applies to all persons regardless of gender, and that the right to same-sex marriage is not a new right, as defendants claimed, but the right to have their relationships recognized for what they are: marriages.
In addition, Judge Walker ruled that California's domestic partnership laws do not satisfy the state's obligation to allow citizens to marry. "Domestic partnerships exist solely to differentiate same-sex unions from marriages... California does not meet its due process obligation to allow plaintiffs to marry by offering them a substitute and inferior institution that denies marriage to same-sex couples."
The judge's ruling includes a permanent injunction against enforcement of Proposition 8, which in theory means that same-sex couples can marry again in California. But the Prop 8 supporters have already asked Judge Walker to issue a stay of the opinion and prevent any same-sex marriages from taking place while the case is on appeal to the Ninth Circuit, its next destination on its way to the U.S. Supreme Court. It's likely the stay will be granted and no marriages will actually take place; watch this blog and the website of the National Center for Lesbian Rights for updates.
The decision comes after Judge Walker heard two weeks of testimony in January, and closing arguments in June. The end result is not surprising, given that the Prop 8 supporters presented very little evidence to support their position--as Judge Walker noted, "the minimal evidentiary presentation made by [Prop 8 supporters] does not meet the heavy burden of production necessary to show that Proposition 8 is narrowly tailored to a compelling government interest." On the other hand, the plaintiffs and their counsel, Ted Olsen and David Boies, put together a powerful case that included not just the emotional testimony of the plaintiffs themselves, but also the testimony of experts in sexual orientation, and child development, all of which went to prove that Prop 8 was a product of animus toward same-sex couples.
Despite the inevitability of the appeal, the LGBT community and justice-loving folks everywhere can enjoy Judge Walker's eloquent defense of our constitutional right to participate fully in society. Full equality is coming; it's just a matter of time.
Five other states (California, Nevada, New Jersey, Oregon, and Washington) offer marriage-equivalent relationships for same-sex couples, while Colorado, Hawaii, Maine, Maryland, Rhode Island, and Wisconsin all provide certain limited rights and benefits to same-sex couples who register with the state.
At this point, nearly half of all American citizens live in a place where there is some sort of recognition of same-sex relationships, whether it's marriage, marriage-equivalent, marriage-lite, or simply the recognition of marriages performed in other states. Given how much confusion is created by the federal government's failure to recognize any of these relationships, we can only hope that a repeal of the federal Defense of Marriage Act will be coming soon.
On the 40th anniversary of the Stonewall rebellion, the New York Times ran an article and an op-ed piece about the condition of gay rights in the U.S., both with the same basic premise: the American public is way ahead of the American government on the issue of rights for LGBT people. Adam Nagourney's Political Memo takes President Obama to task for failing to live up to his campaign promises on equality for the LGBT community; Frank Rich's op-ed rightly notes that "It's a press cliché that 'gay supporters' are disappointed with Obama, but we should all be. Gay Americans aren't just another political special interest group. They are Americans who are actively discriminated against by federal laws."
Last week, Representative Barney Frank introduced a new Employment Non-Discrimination Act in the House of Representatives. Read about it at Nolo's Employment Law Blog.
And this morning, President Obama is meeting with gay rights leaders at the White House to commemorate the 40th anniversary of Stonewall. After the disappointments of the past month, that should be an interesting conversation.