Bench Memos

Walker Rejects Stay Request

Unbelievable:  Judge Walker has denied the motion of Prop 8 proponents for a stay of his wild ruling against Prop 8 (with the exception of a stay for a limited time—until 5 p.m. on August 18—to enable proponents to seek Ninth Circuit review of the denial).  In other words, he’s trying to implement same-sex marriage immediately—not only in the face of the more than seven million California citizens who voted for Prop 8 but also in an obvious effort to undermine the availability of appellate review as a meaningful corrective.

The heart of Walker’s rationale is that Prop 8 proponents may not even have standing to appeal.  But if they don’t have standing to appeal, how did they have a right to intervene as defendants to present the defense of Prop 8?  Why didn’t Walker simply enter a stipulated judgment (update: or more properly, as I hope to discuss more fully soon, dismiss plaintiffs’ case) when the state defendants abandoned their duty to defend Prop 8?  The obvious reason is that state law recognizes that a proposition’s proponents have authority to defend the proposition, lest government officials subvert the ultimate power that the proposition process places in the people.  That authority necessarily must confer standing to appeal an adverse decision.  (Update:  I hope to amplify this point soon.)

Walker’s action screams for reversal by the Ninth Circuit.  If that (alas, notoriously unreliable) court refuses to impose a stay pending appeal, then it will be up to the Supreme Court to, once again, put an end to Walker’s lawlessness—this time, I would think, unanimously.  (Yes, I think that even those justices who may be inclined to invent a federal constitutional right to same-sex marriage will be appalled by Walker’s disregard of precedents, his absurdly biased “factfinding,” and his effort to thwart meaningful appeal.)

I expect that Prop 8 proponents will file soon with the Ninth Circuit a motion for a stay pending appeal.  I will plan to track developments closely and report on them here.

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