Stay Lifted: Marriages Can Begin Aug. 18

Updated

Same-sex marriages will be allowed to begin again on Aug. 18 after Judge Vaughn Walker denied efforts by proponents of Prop 8 to put a halt to the nuptials.

Walker’s order does give supporters of California’s same-sex marriage ban time to appeal his decision, so it is still uncertain whether ceremonies will actually begin on that date. The proponents have vowed to take this aspect of the case to the Supreme Court if necessary.

But he rejected their arguments that they were likely to succeed on appeal — which is a factor in deciding whether to grant a stay pending a later judgment.

“Proponents had a full opportunity to provide evidence in support of their position and nevertheless failed to present even on credible witness on the government interest in Proposition 8,” Walker wrote. “Based on the trial record, which establishes that Proposition 8 violates plaintiffs’ equal protection and due process rights, the court cannot conclude that proponents have shown a likelihood of success on appeal.”

Walker overturned Prop 8 in a ruling last week. The plaintiffs, two couples that sought to get married after the initiative passed in November, 2008, are represented by Ted Olson and David Boies, and their suit is being backed financially largely by a group of entertainment industry activists.

In his 11-page order, Walker raised doubts that the proponents will even have standing to appeal.

One complicating factor for the proponents, which include those who ran the Yes on 8 campaign, is that they are not actually the defendants in the case. Two of those defendants, Gov. Arnold Schwarzenegger and Attorney General Jerry Brown, said last week that the marriages should resume, meaning that the proponents “will need to show standing” at the Court of Appeals, Walker wrote.

Until Schwarzenegger and Brown announced last week that they would not defend Prop 8, the issue of standing got little attention. But it could end the case before it ever gets to the Supreme Court, with Prop 8 invalid in California but marriage bans in effect in other states.

“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 said. “In light of these 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.”

As such, the proponents failed to show how they would be harmed were marriages allowed to proceed, he wrote.

Proponents argued that to allow marriages now would raise “uncertainty,” as the unions could be ruled invalid should a higher court overturn Walker’s decision.

“Whether plaintiffs choose to exercise their right to marry now is a matter that plaintiffs, and plaintiffs alone, have the right to decide,” Walker wrote.

The full copy of the order is here.

Update: Olson said in a statement: “The overwhelming evidence at trial established beyond any doubt that Proposition 8 denies gay men and lesbians the fundamental right to marry and treats them unequally, without any rational basis for doing so, and that it causes them irreparable and immediate harm. The Court’s decision today recognizes that there is no reason to delay allowing gay men and lesbians to enjoy the same rights that virtually all other citizens already enjoy.” 

Jim Campbell of the Alliance Defense Fund, representing proponents of Prop 8, said in a statement: “This case has just begun, and ADF and the rest of the legal team are confident that the right of Americans to protect marriage in their state constitutions will ultimately be upheld. It makes no sense to impose a radical change in marriage on the people of California before all appeals on their behalf are heard. If the trial court’s decision is eventually reversed, refusing to stay the decision will senselessly create legal uncertainty surrounding any same-sex unions entered while the appeal is pending.”

In arguing against proponents’ contention that it was in the public interest to not restart marriages, Walker made frequent mention of Schwarzenegger’s support for resuming same-sex nuptials.

Schwarzenegger’s reaction today: “I am pleased to see Judge Walker lift his stay and provide all Californians the liberties I believe everyone deserves. Today’s ruling continues to place California at the forefront in providing freedom and equality for all people.” 

Other reaction:

Ellen DeGeneres: “My marriage is one of the best things that happened to me. I’m so happy that all loving couples will be able to have the same thing in CA.” (via Twitter).

Lance Bass: “What a monumental day! Thank God for the judicial system and the smart men and women who do their best to be fair. Huge thanks!” (via Twitter).

Update: Proponents of Prop 8 filed a challenge to the 9th Circuit on Thursday, blasting Walker’s decision as selective with the facts and one sided. They said that his “legal errors alone are palpable and destined for reversal.” And as to the issue of standing, they noted that it has never been an issue before in defending Prop 8, including last year before the California Supreme Court.

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