I haven’t written about Prop 8 lately, but only because I feel like folks have been too eager to get a fix when most of what’s happening now is just standard legal procedure. If you haven’t paid attention over the last week, here’s a quick catch-up, and then below I’ll respond to some statements from Protect Marriage.
First, here’s a quick reminder of the vocab, because I know it can get confusing. The plaintiffs are the good guys (represented by Olson and Boies), the defendants are the actual government officials, and the proponents are the Protect Marriage folks who stepped in as defendant-intervenors.
» When Judge Walker first overturned Prop 8 two weeks ago, he implemented a temporary stay for his own ruling for the sole purpose of giving the defendants/proponents a window to demonstrate why the decision should be stayed until after appeal. This was a tough case to make since he said in the decision that same-sex marriage in no way harmed anybody or any marriages.
» We learned that Judge Walker would make his decision on this matter last Thursday (August 12). We waited with baited breath through a three-hour window in which we thought we would hear. Couples were waiting in line to marry and extra city officials had been deputized to help perform the marriages. Finally, sometime in the fourth hour we learned that he would be lifting the stay, but it would still be in effect until this Wednesday (tomorrow, August 18).
Many were underwhelmed by this response. Given that the original decision had been so unabashed in outlining the harm to gays and lesbians by Proposition 8, this seemed an unnecessary extension of that harm. Evan Wolfson of Freedom to Marry called it Justice Delayed. The extension of the stay created room for the Appeals Court to offer their own stay without there being a window of legal same-sex marriage.
» Yesterday, the appeals court did issue their stay until that round of the trial is over. This is disappointing news for most. The court did expedite the case, but that won’t necessarily appease many, as the trial date is in December, and a decision won’t come until potentially months afterward.
» There is still the question of standing, whether the proponents have the right to appeal at all since they are not the defendants. A decision in that matter could end everything else. If that were to happen, Judge Walker’s ruling would apply, but to California only. Still, it would be an important precedent for future trials in other parts of the country.
That’s where we stand now. Same-sex couples still cannot marry in California. A final decision in that matter is still at least half a year away, if that. It’s odd to recognize that we had this huge victory two weeks ago and yet we don’t have much to show for it.
In the meantime, we can still take a whack at Protect Marriage and their ugly gloating over basic procedure that is not really a victory for them at all.
Here was Charles Cooper’s reaction last Thursday when Judge Walker (kind of) lifted the stay:
We are gratified that Judge Walker has continued until August 18th the temporary stay of his decision. We will promptly seek from the Ninth Circuit Court of Appeals a stay pending the final resolution of the case. On appeal, we look forward with confidence to a decision vindicating the democratic process and the basic constitutional authority of the 7 million Californians who voted to retain the traditional definition of marriage. The decision whether to redefine the institution of marriage is for the people themselves to make, not a single district court judge, especially without appellate scrutiny.
Again, this completely ignores the fact that it is Judge Walker’s job to uphold the Constitution as the law of the land. Andy Pugno then, of course, gloated yesterday when they got a stay:
This afternoon, the Ninth Circuit Court of Appeals granted a request by Prop 8 proponents to stay U.S. District Court Judge Vaughn Walker’s ruling, thereby upholding the vote of 7 million Californians while the Perry v. Schwarzenegger case is heard on appeal. The arguments will occur in San Francisco the week of December 6, 2010.
“California voters spoke clearly on Prop 8, and we’re glad to see their votes will remain valid while the legal challenges work their way up through the courts. Invalidating the people’s vote based on just one judge’s opinion would not have been appropriate, and would have shaken the people’s confidence in our elections and the right to vote itself,” said Andy Pugno, general counsel for ProtectMarriage.com, the defendants in the Perry v Schwarzenegger case.
Always eager to play the victim! Enjoining Judge Walker’s decision would have validated my confidence in the judiciary to be a balanced check, but that’s just me.
Pugno went further in an email to Prop 8 supporters:
As we pointed out in our motion, Judge Walker’s decision totally ignores virtually all legal precedents, the well-recognized public interest served by fostering traditional marriage, and even common sense itself.
Of course, he has to raise the stakes so he can ask for more money two paragraphs later. He’s so appreciative of the prayers and support. Won’t you give these whiny brats a special donation so they can continue to waste the government’s time with unconstitutional, discriminatory ideas?
Or, don’t. 🙂