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Gay marriages may resume in California next week, judge rules

By Sandhya Somashekhar
Washington Post Staff Writer
Friday, August 13, 2010; A02

A federal judge in San Francisco ruled on Thursday that same-sex marriages in California may resume as soon as Wednesday, but gave opponents until then to seek an injunction from a higher court.

U.S. District Judge Vaughn R. Walker struck down last week California's voter-approved ban on same-sex unions, calling it discriminatory and unconstitutional. But he delayed implementation of his ruling after opponents asked for a stay while the case is being appealed.

Walker denied their request on Thursday, but he offered a six-day delay. That gave hope to opponents who have brought appealed the case before the U.S. Court of Appeals for the 9th Circuit.

"I'm happy that the judge issued a temporary stay until next week," said Brian Raum, senior counsel for the Alliance Defense Fund, a Christian legal aid group that participated in the case. "That gives us the window we need to seek a more permanent stay as it goes before the 9th Circuit."

Gay rights groups hailed Walker's decision as a victory, although it disappointed gay couples around the state who had lined up at city halls in hopes of getting married Thursday.

"It's making the long drive home even more miserable," said Midge Detro, 45, a resident of a town about two hours south of San Francisco.

She and her partner of 16 years, Sandy Simmons, awoke at dawn to arrive at San Francisco City Hall to be among the first to marry on Thursday. Instead, they filled out forms, had lunch and headed home with plans to return on Wednesday.

"I just hope they don't try anything next week," Detro said. "That's the only scary part of this whole thing."

Last week's ruling by Walker invalidated Proposition 8, a ballot initiative that defined marriage as between a man and a woman. The decision was viewed by both sides as a landmark moment in the battle over same-sex marriage, even though the fight is far from over. The case is widely expected to end up before the Supreme Court.

Supporters of Proposition 8 had argued that heterosexual marriage is a building block of society because of its role in procreation and that the ballot initiative, which passed in 2008 with 52 percent of the vote, reflected the will of the people.

But in a 138-page ruling, Walker largely agreed with supporters of same-sex marriage that Proposition 8 violates gay couples' equal rights as outlined in the Constitution's 14th Amendment.

Even before Walker handed down his decision last week, defenders of Proposition 8 had asked for an immediate stay while they pursued an appeal, arguing that allowing same-sex marriages to go forward would cause "irreparable injury" to residents of the state. They also said any marriages performed before the case reached its final disposition would be legally questionable.

But in Thursday's 11-page opinion, Walker wrote that the defenders of Proposition 8 "fail to satisfy any of the factors necessary to warrant a stay." Moreover, he questioned whether the lawyers, who come from religious and nonprofit groups, have the legal standing to appeal.

Neither Gov. Arnold Schwarzenegger (R) nor state Attorney General Jerry Brown (D) agreed to defend Proposition 8 in court, and both weighed in on the side of overturning it.

Walker wrote that it appears "at least doubtful that proponents will be able to proceed with their appeal without a state defendant." He denied a stay, he wrote, "except for a limited time solely in order to permit the court of appeals to consider the issue in an orderly manner."

Supporters of same-sex marriage praised the stark language of the opinion and said they regard the delay as a formality.

"The court's decision today recognizes that there is no reason to delay allowing gay men and lesbians to enjoy the same rights that virtually all other citizens already enjoy," Theodore B. Olson, one of the two lawyers who led the effort to invalidate Proposition 8, said in a statement.

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