California Same-Sex Marriage Stay To Be Lifted August 18

Reports from around the web:

ABA Journal:

The federal judge who ruled California's same-sex marriage ban unconstitutional has declined to permanently stay his ruling. But he did allow a temporary hold on his order, giving Prop 8 supporters time to appeal the ruling.Supporters have until Aug. 18 to appeal to the 9th U.S. Circuit Court of Appeals. But only those who have standing, those impacted by U.S. District Judge Vaughn Walker's order, will be able to appeal, the Los Angeles Times reports.

Read the 11-page final stay order (PDF).

The campaign for Proposition 8 plans to file an immediate appeal.

Via Law.com:

Chief Judge Vaughn Walker today denied a motion to stay his decision overturning California's ban on same-sex marriage. But Walker stayed entry of judgment until Aug. 18 at 5 p.m., giving proponents a window in which to appeal his ruling on the stay to the 9th U.S. Circuit Court of Appeals. The decision on the stay came out after a morning of online reports describing a growing line of hopeful couples congregating at San Francisco City Hall.

From Point of Law:

Judge Walker refused to grant a stay of his ruling in Perry v. Schwarzenegger. At the moment, the California governor and attorney general are refusing to defend Prop 8, and Judge Walker held that the intervenors, the organizations that supported Prop 8, might not have standing to appeal his ruling.

Also on the appellate standing issue, Andrew Sullivan:

This seems to me the news in Judge Walker's decision to extend a stay on his ruling in favor of marriage rights for gay couples until August 18. I'm not a legal expert but this is from the NCLR's release:

Even though Judge Walker did not immediately let same-sex couples in California marry, the ruling provides important insight into the merits of the issues that the Ninth Circuit will consider on appeal. For example, in his ruling today, Judge Walker casts serious doubt on whether the proponents of Prop 8 even have "standing" to pursue an appeal because they do not speak for the state of California, and the official representatives of the state agree that Prop 8 is unconstitutional. Standing refers to whether a particular person has a legal right to bring an appeal. In his ruling today, Judge Walker said: “As it appears at least doubtful that proponents will be able to proceed with their appeal without a state defendant, it remains unclear whether the court of appeals will be able to reach the merits of proponents’ appeal. In light of those concerns, proponents may have little choice but to attempt to convince either the governor or the attorney general to file an appeal to ensure jurisdiction."

But the governor and attorney general favor marriage equality. So it will be up to Anthony Kennedy, if the appeal court denies standing to the Prop 8 proponents. But maybe not. A reader notes:

Appellate courts generally try to resolve cases on the narrowest grounds possible. Since the question of whether the intervenors have standing to pursue the appeal is a procedural/jurisdictional issue, and not the merits of the case, an appellate court should look to that question first to see if the case can be resolved without addressing the merits. If the court decides that the intervenors don't have standing to appeal, the court could resolve the case in favor of the plaintiffs without granting much room for the Supreme Court to take the case and reverse it.

- Garry J. Wise, Toronto

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