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Wednesday, August 4, 2010

Prop. 8 Overturned: Gay Marriage On Hold Pending Stay

Posted By on Wed, Aug 4, 2010 at 1:55 PM

click to enlarge Oh, happy day... - PATRICK CONNORS
  • Patrick Connors
  • Oh, happy day...
READ THE ENTIRE RULING HERE

NO SAME-SEX MARRIAGES TODAY, SAYS SUPERVISOR BEVAN DUFTY

FRIDAY DEADLINE FOR PARTIES TO SUBMIT PAPERS REGARDING WHETHER STAY ON SAME-SEX MARRIAGE WILL BE LIFTED -- THOUGH DECISION MAY NOT BE MADE AT THAT TIME. SEE COURT PAPERS HERE: Temporary stay.pdf

READ JUDGE WALKER'S MOST SCATHING QUOTES HERE


As many legal scholars had predicted, Judge Vaughn Walker this afternoon struck down California's Proposition 8 as unconstitutional -- on both equal protection and due process grounds.

"I told you it'd be a blockbuster," laughed U.C. Berkeley legal scholar Joan Hollinger.

Language from the 1:40 p.m. ruling indicated that, right this minute, same-sex couples can again fill out licenses to wed in California. At 2:09 p.m., however Walker issued a temporary stay -- putting same-sex marriages on hold.

While a marriage certificate was issued to a same-sex couple at City Hall in the half-hour between the ruling and the notification of the stay, city officials ruled that there will be no same-sex marriages today. Per Chris Roberts of the SF Appeal, one couple, Vanessa Judipli and Maria Ydril, did get their license issued in time. But Supervisor Bevan Dufty tells SF Weekly, however, that there was only "a nine-minute window" when marriages could have been performed, the couple's license was incomplete, and he was unable to perform the ceremony. "No one beat the clock," said Dufty. The supervisor still saw Walker's ruling as "a cause for elation."

click to enlarge San Francisco City Attorney Dennis Herrera at a Mission District press conference following today's ruling. Behind him, from left, are plaintiff Sandy Stier; deputy city attorney Therese Stewart; namesake plaintiff Kris Perry; attorney David Boies, attorney Ted Olson; plaintiff Paul Katami; and plaintiff Jeff Zarrillo - PATRICK CONNORS
  • Patrick Connors
  • San Francisco City Attorney Dennis Herrera at a Mission District press conference following today's ruling. Behind him, from left, are plaintiff Sandy Stier; deputy city attorney Therese Stewart; namesake plaintiff Kris Perry; attorney David Boies, attorney Ted Olson; plaintiff Paul Katami; and plaintiff Jeff Zarrillo
The duration of Walker's temporary stay is not yet known: "It appears that

he intends to rule quickly on that motion" made by Prop. 8 proponents

for an injunction, said Courtney Joslin, a law

professor at U.C. Davis. "I can't see why he'd wait weeks and weeks." Walker has ordered papers to be submitted by Friday regarding his stay, and he will either rule then -- or in the future. You can read the court documents regarding the matter here: Temporary stay.pdf

It's easy to see why Walker's ruling sent same-sex couples streaming to the County Clerks' office: "Because Proposition 8 is unconstitutional under both

the Due Process and Equal Protection Clauses, the court orders entry of

judgment permanently enjoining its enforcement; prohibiting the

official defendants from applying or enforcing Proposition 8 and

directing the official defendants that all persons under their control

or supervision shall not apply or enforce Proposition 8."

The language of Walker's decision is unambiguous to Hollinger, a professor at Boalt Hall School of Law. "This is the broadest possible ruling [Walker] could have come up with under California law." Adds Joslin, "This is a very strong and sweeping victory," for advocates of same-sex marriage."

Countering same-sex marriage proponents' claims their equal protection rights were being violated, the backers of Prop. 8 attempted to show that allowing gays and lesbians to wed harmed society and the people of California. The requirement for the defendants was to demonstrate a solid rationale as to why the rights of gays and lesbians to marry should be abridged. Per the judge, that requirement was not met.

Walker decided that denying gays and lesbians the right to marry required "strict scrutiny" -- the highest level of constitutional adherence. "What he said was, even though he's holding to that strict scrutiny, this law wouldn't pass muster even under 'rational review'" -- the lowest level of constitutional adherence, said Joslin. This was Walker's "No Way, Jose" argument, characterizes Hollinger.  

The due process argument, meanwhile, holds that the right to marry is fundamental -- and cannot be abridged without "a very, very good reason," in Hollinger's words.

That a fundamental right to marry exists may be the only thing everyone in the courtroom could have agreed upon. But the major question facing Walker was, whom do we have the fundamental right to marry? "The question presented by the case was, does that right include marrying someone of the same sex?" says Joslin. "The court held, essentially, that yes it does."

Walker's ruling echoed the state supreme court decision of nearly three years ago when Justice Ron George said the prohibition of same-sex marriage violated both the statutory and equal protection clauses of the state constitution.  "Obviously Walker is now reaching the Federal Constitution -- and that's a very good thing," says Hollinger.     

An appeal to the 9th Circuit Court is a fait acompli. An appeal of that court's decision to the Supreme Court -- by either side -- is also all but certain.

Check back for updates.

This post has been altered as more information becomes available

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About The Author

Joe Eskenazi

Joe Eskenazi

Bio:
Joe Eskenazi was born in San Francisco, raised in the Bay Area, and attended U.C. Berkeley. He never left. "Your humble narrator" was a staff writer and columnist for SF Weekly from 2007 to 2015. He resides in the Excelsior with his wife, 4.3 miles from his birthplace and 5,474 from hers.

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