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Thursday, August 12, 2010

Vaughn Walker's Choice to Delay Gay Marriage Praised by Legal Scholars

Posted By on Thu, Aug 12, 2010 at 4:59 PM

'Judge Walker is not a dummy...'
  • 'Judge Walker is not a dummy...'
Judge Vaughn Walker's decision today to officially overturn Proposition 8 -- but stay that action until next week -- left a lot of same-sex couples statewide feeling like the rug had been pulled out from under them.

The knowledge that their marriages were delayed a week -- if not permanently -- was a cold slap of reality after 10 ecstatic minutes of wild and emotional celebrations. But, according to several legal scholars who spoke with SF Weekly, this was a sound -- and shrewd -- move on Walker's part.

"Judge Walker is not a dummy," said professor Michael Zamperini of Golden Gate University's school of law. "He knew if he lifted the stay they were going to go to the appeals court anyway. And if they had to do it in a rush, with people getting married and all that, the court just might feel more inclined to stop it so they could consider the case over these many years."

And yet, long-term strategic moves often result in the folks on the front-line suffering. It was not pleasant for people queuing up at City Hall today to be told their greatest desire was granted -- and then subsequently learn that it was not. But, in the grand scheme of things, this was probably the best move, legal scholars say.

click to enlarge rsz_stay_on_prop_8_part_two_048.jpg

"I think Judge Walker did a very good job, with his opinion and his order," continues Zamperini. "And I am not saying that just as a gay man. As a law professor, he did a good job of everything being very clean and articulate. It was a very good opinion. However ... everyone knows this is a big thing. And, therefore, maybe it might be easier to just say, instead of granting the 'ultimate relief'" -- that'd be same-sex marriage -- "hold off until we decide legally what to do."

In order for the 9th Circuit Court of Appeals to grant same-sex marriage foes the stay they desire, they'll have to meet the standard four factors:

1. Whether proponents have made a strong showing that they are likely to succeed on the merits;

2. Whether proponents will be irreparably injured absent a stay;

3. Whether the stay will substantially injure other interested parties;

4. Whether the stay is in the public interest.

Reading through today's 11-page order -- which you can see here: Walker Aug. 12 order.pdf -- Walker makes it clear, once again, that he feels the proponents of Prop. 8 fall far short on each count. What's more, he notes that they have yet to establish standing -- that is, it is unclear whether they have the legal right to request a stay in this case, considering that it was a case against the state government.

"Standing requires showing of a concrete and particularized injury that is actual or imminent," reads Walker's order. "As official proponents under California law, proponents organized the successful campaign for Proposition 8. Nevertheless, California does not grant proponents the authority or responsibility to enforce Proposition 8."

No one would confuse the lawyers representing foes of same-sex marriage with Clarence Darrow based on their performance in this trial -- to put it mildly. They now have one week to do what they didn't do prior to Walker's decision: Actually mount a case.

Finally, if two circuit court judges agree with Walker and decide against issuing a stay, Joan Hollinger of U.C. Berkeley's Boalt Hall School of Law predicts that an appeal for a stay may be made directly to the U.S. Supreme Court. This would be an early test of how swing Justice Anthony Kennedy feels on the matter.

Whatever happens, prepare for a lengthy legal battle. Whether same-sex couples can follow it while married will be determined as soon as next week.

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About The Author

Joe Eskenazi

Joe Eskenazi

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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