BREAKING: Ninth Circuit Court Grants Stay Of Prop 8 Overturn Pending Appeal

No same-sex marriage for California, for now. Via Rex Wockner, here's the legalese:

Filed order (EDWARD LEAVY, MICHAEL DALY HAWKINS and SIDNEY R. THOMAS) Appellants' motion for a stay of the district court's order of August 4, 2010 pending appeal is GRANTED. The court sua sponte orders that this appeal be expedited pursuant to Federal Rule of Appellate Procedure 2. The provisions of Ninth Circuit Rule 31-2.2(a) (pertaining to grants of time extensions) shall not apply to this appeal. This appeal shall be calendared during the week of December 6, 2010, at The James R. Browning Courthouse in San Francisco, California. The previously established briefing schedule is vacated. The opening brief is now due September 17, 2010. The answering brief is due October 18, 2010. The reply brief is due November 1, 2010. In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing. See Arizonans For Official English v. Arizona, 520 U.S. 43, 66 (1997). IT IS SO ORDERED. [7441574] (JS)

This may get to the Supreme Court yet.

Guest Post - Evan Wolfson

Evan Wolfson is the founder and executive director of Freedom To Marry.

What's Next In The Battle Against Prop 8?

Thursday kicked off another emotional rollercoaster for many California couples as U.S. District Court Chief Judge Vaughn R. Walker rejected a permanent stay of hisAugust 4th ruling striking down Prop 8, but allowed a grace-period for the Ninth Circuit appellate court to decide whether to grant its own stay or let marriages resume on August 18th. Both sides of this issue have filed their motions in response to Judge Walker’s ruling, and now the Ninth Circuit seems poised to rule on the stay before August 18th, perhaps as early as today.

If the Ninth Circuit denies the request for a stay, the anti-gay Prop 8 forces could then ask the United States Supreme Court to issue one. Such a request would be directed to Justice Anthony Kennedy, who could either rule himself or submit it to the full Supreme Court. There are several other permutations possible, including the Ninth Circuit issuing a stay while it considers the appeal, or quick denials all around leading to marriages resuming soon. We’ll have to see how it unfolds; hence, the nerve-wracking suspense and high emotions.

Meanwhile, though, there was a lot to celebrate in Judge Walker’s ruling.

Much like his initial decision declaring Proposition 8 a violation of the Constitution’s guarantees of equal protection and due process (the freedom to marry), Judge Walker’s ruling was thorough, solid, and smart. He noted that, once again, the Prop 8 proponents failed to show any evidence, or provide any clear explanation, of how they are harmed if same-sex couples share in marriage. Judge Walker noted, in fact, the state of California itself has said it doesn’t wish to appeal and doesn’t even want a stay. As Governor Arnold Schwarzenegger and Attorney General Jerry Brown put it, California has no interest in discriminating and marriage for same-sex couples “is consistent with California’s long history of treating all people and their relationships with equal dignity and respect.” The Prop 8 proponents, who intervened to defend the law in Judge Walker’s courtroom, may not even have standing to bring an appeal, given that they are private citizens who have nothing to do with the administration of marriage and, as Judge Walker remarked in my favorite line, have not “alleged that any of them seek to wed a same-sex spouse.” Since they may not even have standing to drag out the case, the Ninth Circuit may conclude there is no appeal.

While emotions are high and the twists in the road are wrenching, we must not spend our time obsessing over the things we can’t control and should focus instead on what we can. Specifically, we can control whether we use every powerful argument and evidence assembled by Judge Walker to make the same powerful case for the freedom to marry in the court of public opinion that we are making in the courts of law. Courts don’t operate in a vacuum; creating a climate and momentum is as important to winning a court case as writing excellent briefs, and it is something we can all contribute to right now.

We don’t yet know how Prop 8 will ultimately fall – whether through this court case or by going back on the ballot as soon as 2012. The work we do now to solidify a majority in California by breaking our silence and asking the non-gay people in our life for support will maximize our chances of winning either way.

For the rest of us throughout the country, last week we racked up our first-ever nationwide poll showing that a majority of Americans now favor the freedom to marry and that the opponents of liberty and equal protection for gay people are in the minority. If we can persuade Bill Clinton, Laura Bush, and even the likes of Glenn Beck to make the journey from opposition to support, then we surely keep barreling down all three tracks of Freedom to Marry’s Roadmap to Victory, which calls for winning more states, securing a majority for marriage, and ending federal marriage discrimination. Whether we win back California next week, or have to keep working at it with one eye on the courts, one eye on the ballot, and both eyes on the prize, the momentum spurred by Judge Walker’s powerful ruling is ours to use in the nationwide persuasion needed now. Let’s use it.

-Evan Wolfson

Ninth Circuit Responds To Stay Motion

Things are moving VERY quickly. Brian Devine reports at Courage Campaign:

The Ninth Circuit just issued an Order stating that the Plaintiffs’ response to the Motion to Stay is due by 11:00 p.m. tonight. The Prop 8 supporters’ reply, not to exceed 15 pages, is due by 9:00 a.m. on Monday, August 16, 2010. This suggests that the Ninth Circuit is preparing to rule on the Motion to Stay before Judge Walker’s temporary stay expires on August 18th at 5:00 p.m. It’s surprising that the Court only gave the Plaintiffs about 9 hours to file their brief, and gave the Appellants until Monday to Reply. But I wouldn’t read too much into this. They know that everyone anticipated the Motion and that everyone’s briefs are essentially written already.

Sounds like everybody wants to get to Hawaii.

Might Mean Something, Might Not

If Protect Marriage's emergency motion to stay the overturn of Prop 8 is denied by the Ninth Circuit Court, they are expected to immediately appeal to the Supreme Court. The justice assigned to hear cases from the Ninth is swing voter Anthony Kennedy.

Interestingly, as the clock ticks down on Judge Walker's stay extension, Justice Kennedy will be in Hawaii to appear at the annual Ninth Circuit Judicial Conference, which runs Monday through Thursday next week. Kennedy is the scheduled speaker at 10:45am the day after Walker's stay expires. The three judge panel that will hear Protect Marriage's motion has not yet been assigned (I don't think), but at least some of the Ninth Circuit judges will also be at the conference.

I don't what, if anything, this could mean for the case.

Archbishop Joseph Kurtz: Walker Has Defined All Marriages As Unconstitutional

"In a sense, he has declared marriage to be unconstitutional, because there is no such thing as ‘gay marriage’,” since true marriage requires a man and a woman."

Save California: Thomas Jefferson Would Have Imprisoned Walker For Treason

"Walker knows that his ruling will be appealed all the way to the U.S. Supreme Court and could be overturned, yet he seems to care little about a peaceful process. By demanding that homosexual 'marriages' begin Aug. 18, Walker is demanding his own way, despite normal legal processes, despite his oath of office, and despite the written words and contextual origins of the U.S. Constitution. If these were the days of John Adams and Thomas Jefferson, federal marshals would arrest and imprison Vaughn Walker as a traitor and domestic enemy of the United States Constitution." - Save California president Randy Thomasson, upping the hate another notch.

Protect Marriage Files 95-Page Emergency Motion For Stay Pending Appeal

Note that the first citation is an article from San Diego's Gay & Lesbian Times.
Protect Marriage Appeal

Here's The Ruling Lifting The Stay

Final Stay Order

Wedding Bells To Ring! Proposition 8 Stay LIFTED By Judge Vaughn Walker!!! Marriages To Resume On August 18th

IMPORTANT UPDATE: The stay does NOT expire until August 18th.

The stay is LIFTED. California's same-sex couples may begin marrying on August 18th. Stand by for the ruling, photos, videos and reactions!

F5 F5 F5 F5 F5

The stay ruling will come here. Although last time the site crashed and this here website thingy scooped most of the blogosphere thanks to our courthouse insider.

Gay Couples Lining Up At SF City Hall

From the San Francisco Chronicle:

Lesbian and gay couples were lining up this morning at the San Francisco clerk's office, hours before a judge is expected to rule on whether same-sex marriages can resume while his landmark decision in the case is appealed. Ron Wood and his boyfriend of seven years, Roger Hunt, were the first in line at San Francisco City Hall. The San Francisco couple said they wanted to be there in case the window of opportunity to wed was small. Wood proposed to Hunt two days ago, and if they get married, they plan to celebrate their honeymoon by taking a motorcycle trip to the Sierra. "I'm trying to remain calm, but I don't want to be devastated if the stay is lifted," Hunt said.

BREAKING: Prop 8 Stay Ruling Tomorrow

The announcement will come between noon and 3pm EST.

U.S. District Judge Vaughn R. Walker will issue a Thursday morning ruling on whether to stay a decision in the Proposition 8 federal case pending appeal, according to a late Wednesday e-mail from the court. The ruling will be issued between 9 a.m. and 12 p.m. Pacific Time. If Walker rules against the stay, the state of California will presumably allow same-sex couples to wed once again. Such unions have been illegal since voters in the state passed Prop. 8 in November 2008.

Here we go again!

HomoQuotable - Jonathan Rauch

"Walker was right to say that separate isn't equal. Civil unions are hardly ideal. But his decision treats civil unions as if they were trivial or worthless. By refusing to give them any weight and declaring them not just inadequate as a matter of policy but prohibited as a matter of law, Walker uses the Constitution to put compromise out of bounds. [snip]

"So I think the decision is a radical one, but not, ironically, as it pertains to homosexuality or to marriage. No, Walker's radicalism lies elsewhere: In his use of the Constitution to batter the principles of its two greatest exponents - Madison and Abraham Lincoln, a Burkean who was steadfast in his belief that ideals must be leavened with pragmatism.

"History will, I believe, vindicate Walker's view of marriage. Whether it will see him as having done gay rights a favor is less clear. For all its morally admirable qualities, his decision sets the cause of marriage equality crosswise with moderation, gradualism and popular sovereignty. Which, in America, is a dangerous place to be." - Jonathan Rauch, writing for the New York Daily News. Rauch, who gay-married in Washington DC in June, is the co-founder of the homocon site, Independent Gay Forum.

West Hollywood: We Are Ready To Resume Gay Marriages If We Get The Word

As we all wait on Judge Vaughn Walker's ruling about a stay, West Hollywood City Hall is putting the word out that they are ready to resume officiating same-sex marriages at a moment's notice. Via Karen Ocamb:

West Hollywood Mayor Pro Tem John Duran says he is ready to start officiating again. “As soon as the federal judge lifts the stay, Weho is ready for the sequel ‘Summer of Love II.’ We will marry as many happy couples as we can until another judge tells us we can’t. Like drops of water becoming a mighty torrent…..” West Hollywood City Clerk Tom West says the five city councilmembers have been deputized but because of work schedules, it is imperative that couples call his office to schedule an appointment: 323-848-6409. Dean Logan, the Registrar-Recorder/ County Clerk for Los Angeles County, is prepared to “take immediate action to implement the court’s orders if the stay is lifted and judgment is entered.” That means county offices will issue marriage licenses to same sex couples as soon as they as the judge’s ruling is clear.

Walker's ruling could come at any time. Lambda Legal cautions that there may only be a very short window of legalized same-sex marriages before the Ninth Circuit Court issues a stay of its own.

Rep. Michele "Crazy Eyes" Bachmann Signs Resolution Condemning Judge Walker

(Via - Good As You)

Wingnuts Vs. Walker (And LGBT Rights)

American Family Association Calls For Impeachment Of Judge Vaughn Walker

“This is a tyrannical, abusive and utterly unconstitutional display of judicial arrogance. Judge Walker has turned ‘We the People’ into ‘I the Judge.' It’s inexcusable for him to deprive the citizens of California of their right to govern themselves, and cavalierly trash the will of over seven million voters. This case never should even have entered his courtroom. The federal constitution nowhere establishes marriage policy, which means under the 10th Amendment that issue is reserved for the states.

“It’s also extremely problematic that Judge Walker is a practicing homosexual himself. He should have recused himself from this case, because his judgment is clearly compromised by his own sexual proclivity. The fundamental issue here is whether homosexual conduct, with all its physical and psychological risks, should be promoted and endorsed by society. That’s why the people and elected officials accountable to the people should be setting marriage policy, not a black-robed tyrant whose own lifestyle choices make it impossible to believe he could be impartial." AFA head Tim Wildmon, calling on the House of Representatives to launch impeachment proceedings against Judge Vaughn Walker.

VICTORY: Proposition 8 OVERTURNED!!!

Moments ago California's Proposition 8 banning same-sex marriage was OVERTURNED by Judge Vaughn Walker! This is just the beginning of a very long court battle, but for today, let's CELEBRATE!

I'll update this post shortly with the details of Walker's ruling.

UPDATE: Here is the complete ruling. Feel free to grab my embed for your own sites!
Prop 8 Ruling
(BIG thanks to JMG reader Victor in San Francisco for getting us the complete ruling before anybody else!)

UPDATE II: Legal eagles, does the first paragraph on the final page mean there is no stay on the ruling?

Prop 8 Decision Due Tomorrow

This is it. The decision on Perry Vs. Schwarzenegger will be issued by Judge Vaughn Walker tomorrow (Wednesday).

The federal court announced today that it will release its decision in the American Foundation for Equal Right’s landmark case, Perry v. Schwarzenegger, on Wednesday. Text “EQUAL” to 69866 to get a text message with the official decision on your mobile phone the moment the court releases its decision, or sign-up for an email alert at equalrightsfoundation.org. Join AFER on its Web site to watch a live press conference with our plaintiffs and co-counsels Ted Olson and David Boies following the release of the decision. As we receive news about the details of the release, AFER will update our Facebook and Twitter profiles, along with our Web site.

While most on our side are confident the decision will go our way, the result will likely be appealed immediately.

UPDATE: Rex Wockner adds: "The Perry order will be e-filed between 1 p.m. and 3 p.m. PDT tomorrow (between 4 p.m. and 6 p.m. EDT - between 21h and 23h GMT/UTC). It will be available electronically to the public not only through PACER but also directly from the court's website free of charge soon after it is e-filed."