Ari Ezra Waldman | Federal Prop 8 Trial | Gay Marriage | News | Proposition 8 | Vaughn Walker

We (Almost) Have Marriage Equality:
An Analysis of Judge Walker's Prop 8 Stay Ruling

Get our Prop 8/Marriage email updates


Ari weighs in on the ruling handed down earlier today by Judge Walker.

Northern District of California Judge Vaughn Walker will enforce marriage equality in of 5 pm Pacific on August 18, 2010.  But for now, same-sex marriages will remain on hold.

Walker But, wait a minute. If the proponents of Prop 8 lost so comprehensively on August 4, why continue the stay? In the words of Judge Walker himself, marriage equality won the day. So, why would a judge delay the enforcement of his own decision. It is really a matter of procedural fairness. Judge Walker recognizes that this is, to paraphrase Vice President Biden, a big [blank] deal and it is only fair in our system to give the parties that lost at trial the opportunity to file their papers with the court of appeals. It also is a sign of respect for the appellate court, which now has time to consider any motion for a stay that they might here in the near future. Plus, this kind of ruling is common, even in civil cases.  It may be frustrating, but Rome wasn't built in a day, and neither were civil rights.

Regardless of the one-week extra delay in same-sex marriages in California, this decision was another momentous step forward for marriage equality. And here are five reasons why.

1.  The stay was denied. 

When lawyers refer to a "stay", they mean a delay in enforcing something. Outside of one more week, which Judge Walker found necessary "to permit the court of appeals to consider the issue in an orderly manner," the stay was denied. Prop 8 proponents had the responsibility of showing that allowing same-sex marriages would do so much harm to them that to go forward with same-sex marriage would be devastating. It's a high hurdle to jump, and Prop 8 proponents barely got off the ground. They admitted that they could not identify any harm to them if marriages licenses were issued. In fact, they relied on apparent harm to same-sex couples, caused by any uncertainty around the availability of marriage rights between now and any appeal. I am heartened that they are thinking so altruistically about same-sex couples here. But, that's not a harm that Prop 8 proponents will feel. In fact, it's barely a harm to anyone at all.

To boil down Judge Walker's ruling, he said that he looked at the possible damage to Prop 8 proponents -- all of which he found hypothetical or unsupported at trial -- and at the possible damage to same-sex couples -- their lack of access to a fundamental right -- and found that the damage to same-sex couples was considerably more substantial.

2.  Prop 8 proponents may not "likely" succeed on appeal.

Prop 8 proponents had to show that their appeal had at least a "likelihood" of success. That's a fancy way of saying that the only way a stay can be granted is if your appeal has merit. First, Judge Walker's decision on August 4 so eviscerated every piece of the Prop 8 proponents' case that he could not see any likelihood of success.  

3.  Prop 8 proponents may not even be able to appeal.

Second, and more importantly, Judge Walker notes that Prop 8 proponents may not even have the right to appeal. Lawyers call it "standing", which is not a homage to an R.E.M. song, but rather a way to identify those parties who have been hurt by an adverse ruling at trial and, thus, can ask a court to fix it. As noted here earlier, Governor Schwarzenegger and Attorney General Brown filed papers asking Judge Walker to remove his temporary stay. They are California in this case, they are the ones that have to change their practices as a result of the ruling,  and they don't even want to wait to do so. They want to start issuing marriage licenses to same-sex couples.  Since it is the State of California and not a collection of anti-marriage equality advocates that issue marriage licenses, the only parties that may have the ability to ask the court of appeal to review Judge Walker's decision are those representing the State of California.

Think of it this way. Let's say the San Diego Padres win a game against the New York Mets due to a botched call by an umpire. The win propels the Padres into first place ahead of the San Francisco Giants.  Who can appeal the win to the commissioner's office? Only the Mets. The botched call directly harmed them. They were the injured party. The Giants may have also been affected, but the adverse call didn't happen to them. To put it another way, a man is married to a woman. The man has an affair. Only the embattled wife can sue for divorce. The man's mistress can't ask a court to divorce the couple.

This is important for obvious reasons. The governor's and attorney general's decision to ask Judge Walker to lift the stay pretty much means they agree with the decision and do not want to have any part of an appeal to the Ninth Circuit. The remaining defendants in the Prop 8 case -- anti-marriage equality advocates -- are the only ones left. They were given a chance at trial to identify what kind of harm they would face if Prop 8 were overturned, but they failed to show any evidence of real harm.  Without any harm, not only do they lose their case at trial, but also they may lack the right to appeal.

And, in 1997, the Supreme Court has indicated that they agree. It was a case that involved a vote on making English the official language in Arizona. The Supreme Court found that initiative proponents, like the anti-marriage equality advocates in this case, do not automatically have the right to appeal a court decision overturning that initiative.

So, will this case be appealed? Don't be so sure.

4. This is another well-reasoned and well-supported decision from Judge Walker.

Nevertheless, Prop 8 proponents will try to appeal. They will also try to get the Ninth Circuit to do what Judge Walker refused to do, i.e., grant the stay. But, just like I discussed after Judge Walker's ruling last week, his decision was so well-written that an appellate court would be hard-pressed to defy him. I see that again here. Prop 8 proponents' inability to provide any evidence that they would be harmed by marriage equality in California is all over this decision and it was the fatal flaw in their argument, both at trial and for a stay. There simply is not enough evidence of real or expected harm to justify a stay.

5. This was a reaffirmation of marriage equality.

Judge Walker said it best: "[T]he trial record left no doubt that Proposition 8 inflicts harm on plaintiffs and other gays and lesbians in California. Any stay would serve only to delay plaintiffs access to the remedy to which they have shown they are entitled." Amen.

What happens now? 

Prop 8 proponents have already stated on CNN, MSNBC and Fox News that they plan on asking the Ninth Circuit for a stay and, if necessary, the Supreme Court. But any appellate court will first have to address the threshold question of whether they have the right to ask a higher court for a stay. It is unclear whether they have standing to appeal, as discussed above. Given that, here is one possible scenario of how this will play out, step-by-step:

Motion to Ninth Circuit for stay. If denied, motion to the Supreme Court. If granted, filing papers for a substantive appeal of the decision itself. If the Ninth Circuit finds Prop 8 proponents have no right to appeal, they may appeal that ruling to the Supreme Court, or the case ends with Judge Walker's ruling in place permanently. This may take 1-2 years.

If the Ninth Circuit finds Prop 8 proponents do indeed have the right to appeal, a three-judge panel of the Ninth Circuit will hear that appeal. Either way, the case will probably be then heard by a larger panel -- perhaps, 11 -- of judges. Then, the case may go before the Supreme Court. This may take up to 3-5 years.

Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His area of expertise are criminal law, criminal procedure, LGBT law and law and economics.

Feed This post's comment feed


  1. Succinct and logical - thank you for this.

    The most compelling item is that proponents of Prop 8 may not even be *allowed* to appeal because they haven't demonstrated that they've been harmed. Yup.

    Posted by: Steve | Aug 12, 2010 5:18:56 PM

  2. And plus, one week gives everyone plenty of time to register at Crate & Barrel.

    Posted by: crispy | Aug 12, 2010 5:22:46 PM

  3. Ari thank you for boiling this down to a level I can understand. Keep up the good work and whenever you can mention Padres in first place...well you're aces in my book!

    Posted by: Pre-Read | Aug 12, 2010 5:25:53 PM

  4. Is this the three-judge panel: Leavy (Reagan appointee), Hawkins (Clinton appointed) and Thomas (Clinton appointed)???

    Posted by: Ninong | Aug 12, 2010 5:27:53 PM

  5. Excellent analysis. The only quibble I have is that I would think the 9th Circuit can certainly, if it chooses, issue a stay pending its determination of the standing issue, i.e., I don't believe it is true that "any appellate court will first have to address the threshold question of whether they have the right to ask a higher court for a stay." A court always has jurisdiction to determine its own jurisdiction, and if it believes a stay is necessary for an orderly determination of that question, I see no reason why the court cannot do so.

    Posted by: Glenn | Aug 12, 2010 5:28:01 PM

  6. You're right, Glenn. But the court will ultimately have to decide standing before addressing the merits. With regard to issuing a stay, you're right. But the standing issue will have to be resolved before any merits.

    Posted by: Ari | Aug 12, 2010 5:33:48 PM

  7. I'm no legal scholar so I am still confused. If the 9th CCoA grants the stay, WHEN might they do that? Could it happen tomorrow? If not, how soon? Obviously if they grant the stay, no marriages. From the outline it seems unlikely they will be able to grant the stay, but since they can, I just don't get the timeline of when that could happen. If it happens in two weeks, then i guess marriages can happen in that window from next wednesday until the stay is granted. RIght?

    Posted by: dms | Aug 12, 2010 5:40:04 PM

  8. Great explanation, Ari. And congratulations on your appointment to the faculty at Cal Western School of Law! They are lucky to have you.

    Posted by: Jon Davidson | Aug 12, 2010 5:47:11 PM

  9. I'm sorry for any confusion, DMS. If you're confused, I didn't do my job.

    To answer your question, we cannot be sure exactly when the Ninth Circuit will rule on a stay. First, the Prop 8 proponents have to submit their papers asking for a stay and those in favor of letting same-sex marriages go forward will have a chance to submit briefs in opposition. This will be pretty quickly done because the nature of a stay is that you're arguing that we must do this now because if we don't, I'm going to be harmed.

    The Ninth Circuit can issued its ruling before August 18, if all papers are in, or they may take a bit more time. If they take more time and do in the end grant the stay, there will be a period of same-sex marriages that will occur in between.

    So, I guess you understood more than you thought! :)

    Posted by: Ari | Aug 12, 2010 5:47:48 PM

  10. I think it looks very positive for same sex marriage. The opposing team does not have any evidence of "harm" so...looks like gay marriage is a go. :)

    Congrats everyone.

    I honestly believe things are getting better. My kids (6 and 4) don't even bat an eye over same sex couples. I simply told them when they asked "those people love each other". They know what love is so that's all that needs to be explained by any parent to a child. Kids understand love. More and more kids will grow up believing that love is what matters, not what you look like on the outside.

    Love is all that matters.

    God bless, ya'll!

    Posted by: Rin | Aug 12, 2010 5:57:57 PM

  11. I'm guessing that the 9th Circuit and a majority of Supreme Court Justices are happy to dodge this case for now, leaving marriage equality in California and our handful of other states, as the issue gets worked out in additional states in the years ahead. The tide seems to be turning our way, and they might prefer to let it continue a while longer if they can. The standing issue gives all the appellate courts a chance to avoid confronting the sweeping constitutional issues head on.

    In the meantime, Judge Walker's analysis may help persuade several more states that our rights are being violated. We have an excellent template for future federal district court trials!

    Posted by: Jeff | Aug 12, 2010 5:59:38 PM

  12. The Ninth Circuit also might grant a temporary stay before August 18th to give themselves more time to decide whether to issue a stay pending appeal (just like Judge Walker did last week). If they do that, same-sex couples will not be able to marry until the stay issue is resolved. And, even if they Ninth Circuit denies a stay, they may issue a temporary stay at that point (as Judge Walker did today) to give the Supreme Court a chance to way in on the stay issue, if the Court wants to.

    Posted by: Jon Davidson | Aug 12, 2010 6:00:15 PM

    Thanks for the great posts, breaking it down into layman's terms and real possibilities.

    @ ANDY TOWLE - great idea for a Towleroad legal correspondent: please keep the ARI posts coming!

    @ RIN - my nieces didn't bat an eye either. I just said when they were like 5, "Some boys love girls and some boys love boys and some girls love girls and some girls love boys" and they went "Yeah".


    Posted by: Strepsi | Aug 12, 2010 6:05:18 PM

  14. Jeff, I think you're right, both the 9th circuit and Scotus would rather let this play out in the states, the standing issue here is a perfect excuse for that. Ari, can you weigh in on that? Also why would it take a year or two to determine standing in this case? That seems very long. Isn't standing in a case like this a pressing issue and a fairly straightforward one?

    Posted by: Chris | Aug 12, 2010 6:30:47 PM

  15. So, I am a lawyer, and I'm a bit perplexed by the standing issue that is being raised now. How were the Prop 8 opponents allowed to intervene as defendants if the court is questioning their standing now? I don't see anything in Rule 24 that would allow intervention by people who do not have a cognizable interest in the outcome, and as a result standing.

    If the Prop 8 proponents didn't have standing in the first place, what does that do the results of the trial? They intervened because the state conceded in the unconstitutionality of Prop 8.

    The Towleroad comments aren't the ideal place for arcane legal discussions, but you have given this more thought than anyone I've read anywhere else.

    Posted by: Brian | Aug 12, 2010 6:34:40 PM

  16. Ari, could you explain what this ruling says for other states? Especially those that already have a ban on same-sex marriage in place.

    Posted by: Ryan | Aug 12, 2010 6:36:17 PM

  17. still a bit of confusion here. I see two scenarios with at the end with regard to whether or not proponents have the right to appeal, not one. correct? in the case that they are found NOT to have the right to appeal, it may take 1-2 years. if they do have the right, it may take 3-5 years. will same-sex couples be allowed to marry during that time in both situations?

    Posted by: Chris | Aug 12, 2010 6:37:54 PM

  18. Chris, I think Jeff's point has merit. There are two canons among lawyers and judges that, where possible, (1) a court should not decide more than it has to and (2) that if there is a way to deal with a case without reaching a Constitutional question, deal with it that way. The latter canon comes up when a court can decide a case as a violation of a statute AND as a violation of the Constitution. The court will normally conclude on statutory grounds and state that it need not address the constitutional question. So, deciding the standing issue against the Prop 8 proponents is an easy tool in this area.

    That is not to say that a court can't decide a constitutional question not directly before it. Chief Justice Roberts has done that often, to the consternation of other justices who have, as a result, read their dissents out loud on the issue.

    In any event, the Supreme Court need not take the case and may want to avoid the hot-button issue. But, there are a number of scenarios. Justices Ginsburg and Breyer are good strategists on the Court as well as whip smart. You can bet that if they know they have Justice Kennedy on their side, they are going to grant. If neither side could be sure of Justice Kennedy's vote, they may deny review. A colleague of mine suggested this counter-intuitive, but plausible scenario: The moderates on the Court have an ally in Justice Kennedy, Justice Roberts puts himself in the majority and assigns himself the responsibility of writing the opinion. That way, he can keep it as narrow as he wants. I suppose that's possible, too, though I have to admit, it does not occur to me as likely.

    As for timing, I don't think anyone can speak to that with any real accuracy. I have worked on appeals where there were 4 week periods allowed for writing and submitting briefs, but the decision didn't come down for another 18 months. So, who knows?

    Posted by: Ari | Aug 12, 2010 6:44:17 PM

  19. Lots of excellent questions. I'll do my best despite my fingers' fatigue.

    @Brian: The requirements of permissive intervention are different from requirements for standing on appeal.

    To establish that they have standing to appeal the court’s decision under Article III, Section 2 of the Constitution, proponents must show that they have “suffered an injury in fact, which is fairly traceable to the challenged action and is likely to be redressed by the relief requested.” Didrickson v. United States Dept of Interior, 982 F2d 1332, 1338 (9th Cir 1992). When they requested to intervene at trial, Judge Walker determined that proponents had a significant protectible interest under FRCP 24(a)(2) in defending Proposition 8. But, now, that interest may well be “plainly insufficient to confer standing.” Diamond v. Charles, 476 US 54, 69 (1986).

    As Judge Walker stated, the standards are different. If the California officials do not appeal and Prop 8 proponents want to appeal on their own, they have to show standing independent of California.

    Posted by: Ari | Aug 12, 2010 6:52:25 PM

  20. Nicely done and simple outline. Thanks.

    Posted by: Kathy Baldock | Aug 12, 2010 6:55:00 PM

  21. @Ryan: Super good question. At this point, we cannot say that this decision has much to do about other states' ban on same-sex marriage. It may, depend on the decisions that come down, and then again, it may not.

    Here are some arguments:

    1. Prop 8 is unique to California. As we know, this particular history to California's ban on same-sex marriage hasn't been duplicated elsewhere. So, the arguments and facts and plaintiffs and so on can be construed as unique to this particular history. If that is persuasive to judges, any Prop 8 decision could be limited to California. And that could be the result even if the Supreme Court affirms Judge Walker's decision.

    2. The Ninth Circuit doesn't cover the whole country. Even if we assume that an appellate affirmance will have reach outside California, the Ninth Circuit could say Judge Walker's decision stands not just for California, but against all same-sex marriage bans. If the Supreme Court does not take the case, marriage equality becomes a reality in the Ninth Circuit, i.e., only out west. That is what has happened in a "Don't Ask, Don't Tell" case out west called Witt v. Department of the Air Force. I'd provide you with a link, but I'm sure how to do that in a comment.

    Sorry to not have a definite answer on this, but it's the nature of the beast when there are a number of forks in the road ahead.

    Posted by: Ari | Aug 12, 2010 7:00:23 PM

  22. @Chris: Maybe, maybe not. That infuriating answer seems to be a pattern here. Sorry!

    Any court can issue a temporary stay so they, or their superior court, can decide any issue. So, that means that now, the Ninth Circuit can issued a stay until they decide everything, or they can issue a stay until they decide the standing issue. Or, they can tell same-sex couples to "come on down the aisle" while they decide. The Supreme Court can also issue a stay pending any of this. So, there is a chance that no same-sex marriages will happen during these years, and there is a chance they will start and stop (unlikely) and there is a chance they could keep happening as it moves through the courts.

    Posted by: Ari | Aug 12, 2010 7:04:41 PM

  23. Ari, I'd also like to thank you for your excellent analysis, explanation, and responses to questions.

    Posted by: Paul R | Aug 12, 2010 7:05:41 PM

  24. Oops, I meant to add a question of my own. Someone else asked about the implications for other states. I assume that if Prop 8 proponents prevail in their appeal and the 9th court rules in our favor, that will only affect CA.

    But if SCOTUS accepts the case for review (how many justices have to agree for that to happen, anyway? I couldn't find it in a brief search), would its decision reach beyond CA? Or could they say it only involves the CA constitution and so doesn't affect other states? Sorry to be displaying my ignorance on whether the top federal court can limit its rulings to individual states.

    Posted by: Paul R | Aug 12, 2010 7:11:08 PM

  25. Ari - when the justices vote on cert do we know who voted which way? It only takes four votes to grant cert, yes? I doubt that scenario with Roberts makes too much sense, but in the light of Lawrence and that he'll be on the court for a long time, I wouldn't take Roberts for granted as a vote against us. I think his concerns are more about protecting business interests than in social issues.

    Posted by: Chris | Aug 12, 2010 7:15:23 PM

  26. 1 2 »

Post a comment


« «News: Paul Koering, Jackdaw, Veritas, Grey's Anatomy, Japan« «