Judge Walker denies stay but extends temporary stay

Judge Walker has ruled on the question of whether to stay his decision in the Prop 8 case.

The upshot, as far as I can tell, is that Walker denied the request for a stay, but extended the temporary stay for one more week, to allow the Court of Appeals to instate a stay if they think one is warranted.

In his abovelinked decision, Walker explains in detail why he doesn't believe a stay is warranted, addressing each of the four standard factors in such a decision. My quick summary of his points:

  1. The Prop 8 supporters who acted as defendants in this case may not even have standing to appeal, since the lawsuit was filed against the state and the state is declining to appeal. The state also declined to defend against the suit, which is why the Prop 8 people ended up as defendant-intervenors, but Walker suggests that there's serious doubt as to whether they can legally appeal the ruling.
  2. The Prop 8 supporters will not personally be harmed if there's no stay. They argued that there might be harm to the state, but Walker says that isn't relevant. They also argued that there might be harm resulting from “a cloud of uncertainty” for same-sex couples who get married between now and the resolution of the appeal. Walker dryly responds: “Proponents have not, however, alleged that any of them seek to wed a same-sex spouse.” (I <3 Walker)—in other words, the cloud of uncertainty doesn't affect the Prop 8 supporters themselves, so isn't relevant to their request for a stay. Also, Walker adds, there's no real uncertainty; any legal marriages, he suggests, would remain legal even if Walker's decision were overturned on appeal.
  3. Leaving a stay in place would continue to harm people whose constitutional rights are being violated by the continued enforcement of Prop 8.
  4. A stay would not be in the public interest.

So for all of those reasons, Walker denies the motion for a stay. However, he also issues a stay on that decision “until August 18, 2010 at 5PM PDT at which time defendants and all persons under their control or supervision shall cease to apply or enforce Proposition 8.”

My understanding is that the delay is to give Prop 8 proponents time to appeal the stay decision to the U.S. 9th Circuit Court of Appeals. I think the idea is that the 9th Circuit Court could decide to institute a longer-term stay sometime during the next week.

But if they don't, then—if I understand right—same-sex couples will be able to get married in California starting next Wednesday evening.

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