Fordham Law


Vaughn Walker, California judge, doubts Prop 8 supporters can stop same-sex marriage

Elizabeth Cooper in New York Daily News, August 13, 2010

Media Source

It ain't over till it's over.
 
Supporters of California's gay marriage ban – commonly known as Prop 8 – have until next Wednesday to stop same-sex marriages from resuming. And while the legal wrangling may not be over, the federal judge who reversed the ban has doubts his critics even stand a chance.
 
U.S. District Judge Vaughn Walker said he is skeptical because the supporters of the voter-enacted gay-marriage ban would not be directly affected by or responsible for implementing the ruling, something required under law.
 
The same-sex couples, on the other hand, he said, are denied their constitutional rights every day that they are barred from marrying each other.
 
Legal experts said the ban's sponsors can only appeal Walker's decision with the support of Gov. Arnold Schwarzenegger or Attorney General Jerry Brown. This is unlikely because both officials have said same-sex couples should be able to tie the knot immediately.
 
"If anyone is going to be ordered to implement Prop 8, that would have to be the state of California, and the governor and attorney general have made it clear that they have no interest in enforcing Prop 8," Elizabeth Cooper, a Fordham University law professor, told the Christian Science Monitor.
 

Of course, that won't stop those who want to put the kaput on gay marriage.
 
Lawyers defending the ban have asked the 9th U.S. Circuit Court of Appeals to impose a stay that would prohibit same-sex marriages until the court looks into the judge's previous ruling that upended the ban.
 
The Alliance Defense Fund, a group defending Prop 8 in court, has said they still have legal right to challenge Walker.
 
"It's ridiculous to think that the proponents of the ballot initiative would be prevented from continuing to represent the successful result of that initiative all the way," Douglas Napier, the group's lawyer told the San Francisco Chronicle.
 
In a much-anticipated ruling, Walker announced on Thursday that same-sex marriages in the state should stay on hold until at least Aug 18, leaving room for gay marriage opponents to file an appeal.
 
Walker ruled last week that Prop 8 "singles out gays and lesbians and legitimates their unequal treatment."
 
The referendum narrowly passed in 2008, five months after the state Supreme Court legalized gay marriage.
 
Those who gathered outside of California city halls hoping to immediately get married were disappointed.
 
"We have to wait six more days," Amanda Pentecost, 25, told the Los Angeles Times in West Hollywood. She was with her partner, Dana Millhollin, 24, and said the delay made her nervous.
 
"That window can close again for years," she added.