August 6, 2010
by Brian Devine
State Attorney General Jerry Brown and Governor Arnold Schwarzenegger just filed papers asking Judge Walker to immediately enforce his decision declaring Proposition 8 unconstitutional and to allow equal marriages to resume in California right away.
The anti-equality backers of Prop 8 filed a motion with the Court asking it to hold off on enforcing (or “to stay”) its decision pending the appeal to the Court of Appeals. Judge Walker ordered that the Plaintiffs file their opposition to this motion today, and agreed to stay enforcement of his decision at least until he rules on this pending motion.
That both the Democratic Attorney General and the Republican Governor think that marriages should resume now shows that there is broad agreement that equality cannot wait for years of appeals. Sure, there are crazy outliers that think that we should continue to discriminate against same sex couples, but those people are far outside the mainstream of legal thought.
The jist of Jerry Brown’s argument is:
Defendant-Intervenors’ argument that the Attorney General’s opposition to Plaintiffs’ initial request for a preliminary injunction supports their request for a stay pending appeal ignores the fact that there has now been a trial on the merits that conclusively demonstrated that Proposition 8 is unconstitutional. In opposing the request for a preliminary injunction, the Attorney General argued that “the parties, the Court, and, indeed, the general public would benefit” from having the constitutionality of Proposition 8 “decided on the merits following full briefing and argument by the parties.” That has now occurred. And while there is still the potential for limited administrative burdens should future marriages of same-sex couples be later declared invalid, these potential burdens are outweighed by this Court’s conclusion, based on the overwhelming evidence, that Proposition 8 is unconstitutional. Accordingly, the harm to the plaintiffs outweighs any harm to the state defendants.
Schwarzenegger’s agrument is similar to Brown’s. In essence, he argues that denying the stay and allowing marriages to resume will further the public interest by promoting equality for all:
[I]mplementing the Court’s order now, without further delay, serves the public interest. . . . California has long been committed to eliminating discrimination on the basis of sexual orientation and respecting the familial rights of same-sex couples. . . . The Court’s decision here is consistent with California’s long history of leading the way in recognizing the rights of gay and lesbian families to order their relationships and manage their day-to-day lives. For that reason, California’s public interest is served by giving the Court’s judgment effect now.
The Plaintiffs (represented by Boies and Olson) have not yet filed their opposition to the Motion to Stay, but it will be filed wihin the next few hours.
UPDATE: Dean Logan, the LA County Registrar/Recorder/Clerk, says that he is preparing to start issuing licenses as soon as the stay is lifted:
“My office is definitely following all developments concerning the ruling and subsequent order to stay judgment. We plan to take immediate action to implement the court’s orders if the stay is lifted and judgment is entered. Operations wise the department is ready to issue same sex marriage licenses, our marriage license forms would not need to be altered and I have directed management staff to prepare for possible implementation.
We have received a number inquiries from members of the public regarding marriage licenses and also to volunteer as deputy commissioners of civil marriages. At this point we can only wait to see what action the court makes.”
West Hollywood officials are also preparing to start officiating marriages, as are other cities across the state. You can be sure that as soon as it is legally possible, San Francisco will be back in the act of marrying same-sex couples. Stay tuned for more updates if/when they come in on the stay.
UPDATE: The plaintiffs have now filed a motion opposing a stay.
From a statement released by the AFER:
Chad Griffin, Board President of the American Foundation for Equal Rights, issued the following statement today after the plaintiffs — and the Governor and Attorney General — opposed a stay of this week’s ruling in the Prop. 8 trial:
“The unconstitutionality of Proposition 8 has been proven beyond a doubt. Extending Prop. 8′s denial of fundamental constitutional rights represents a grave injustice. The time for the court’s ruling to go into effect is now. We welcome Governor Schwarzenegger’s and Attorney General Brown’s opposition to a stay after their thoughtful analysis of the evidence, the court’s ruling and the law.”
Their motion can be found here.
UPDATE BY EDEN: Karen Ocamb notices a wry wrinkle in the AFER motion:
Here is part of their argument, in which they cleverly quote from Protect Marriage witness David Blankenhorn:
“Whether Plaintiffs marry immediately or at a time of their choosing could not be less relevant; this Court’s ruling establishes that Proposition 8 is an unconstitutional barrier to the exercise of their constitutional right to marry, and that finding alone establishes the irreparable harm Plaintiffs would suffer if Proponents’ extraordinary request for relief were granted.
As citizens of a nation profoundly committed to the principle of equal rights, the public has a substantial interest in allowing Plaintiffs to engage in the fundamental right to marry to which they are entitled. “[A]ll citizens have a stake in upholding the Constitution” and have “concerns [that] are implicated when a constitutional right has been violated.” Preminger v. Principi, 422 F.3d 815, 826 (9th Cir. 2005). This Court’s judgment therefore advances the shared interest of all citizens in enforcing the Constitution’s guarantees and reinforces this “Nation’s basic commitment . . . to foster the dignity and well-being of all persons within its borders.” Goldberg v. Kelly, 397 U.S. 254, 264- 65 (1970). Suspending Plaintiffs’ constitutional rights at this point would, in the words of Proponents’ own witness, prevent this Nation from fulfilling the founding principle of “equal human dignity” and stop us from becoming “more American.” Doc #708 at 50 (quoting David Blankenhorn testimony and exhibits) (emphasis added).”
UPDATE BY EDEN: Kathleen in the comments has been an amazing resource for Trial Trackers looking for credible and timely information on the legal process. Often, she’s ahead of us in posting news and providing analysis in the comments. Check out the thread on this post as yet another example.
Speaking of extremely helpful experts in our movement, check out the“What the Temporary Stay in the Prop 8 Case Means” FAQ that Shannon Minter, from the National Center for Lesbian Rights, just sent us. For everyone who wants to understand the legal lay of the land right now, it’s a good short primer. Here are the money grafs:
Judge Walker can decide whether to stay the decision for longer at any time. If he grants the motion to stay, same-sex couples will not be able to marry in California until after the appeal is finished. The Judge can also delay the decision for a short time until the Ninth Circuit appeals court decides whether they will order a stay.
If Judge Walker denies the stay and permits his decision to take immediate effect, the Yes on 8 proponents can ask the Ninth Circuit appeals court to order an emergency stay.