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2010: Lawsuit to overturn California's
Proposition 8 ban on same-sex marriage (SSM)

2010-AUG-04 to AUG-12:
Events following Judge Walker's ruling

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  • 2010-AUG-04: Court ruling: US District Court Judge Vaughn Walker issued his ruling, declaring Proposition 8 to be unconstitutional. The Associated Press reported on Walker's decision:

    " 'Preventing gays from marrying does nothing to strengthen heterosexual unions or serve any purpose that justifies its discriminatory effect, but harms children with same-sex parents and "the state's interest in equality,' he wrote."

    "Describing the defense case as 'a rather limited factual presentation,' he also said its proponents offered little evidence that they were motivated by anything other than animus toward gays -- beginning with their campaign to pass the ban, which included claims of wanting to protect children from learning about same-sex marriage in school."

    " 'Proposition 8 played on the fear that exposure to homosexuality would turn children into homosexuals and that parents should dread having children who are not heterosexual,' Walker wrote." 1

    However, he put a temporary stay on his ruling, preventing its implementation. This prevented loving, committed same-sex couples from immediately marrying in the state.

  • 2010-AUG-05 Appeal launched: The proponents of Prop. 8 -- the defendants in the case heard by Judge Walker -- filed an appeal with the 9th U.S. Court of Appeals. The court has no specific deadline to accept, reject, or to hold hearings on the appeal.

  • 2010-AUG-06: Judge Walker started to study submissions from both the plaintiffs and interveners commenting on whether they felt he should lift the temporary stay that he had placed on his AUG-04 ruling and allow same-sex couples to marry.

    Separate motions were filed with Judge Walker by the lawyers for the plaintiffs, California Governor Schwarzenegger (R) and Attorney General Jerry Brown (D) asking that same-sex marriages be allowed to resume immediately. 8

    Also on this day, cartoonist Mike Luckovich published a cartoon about same-sex marriage. It shows two men starting to walk down a church aisle towards a clergyperson to be married. The latter says: "One step forward, two steps back. Now three forward, one back." A woman in the congregation says "Gay weddings take forever." 9

  • 2010-AUG-11: Support from the ABA: One week after Judge Walker issued his ruling, the American Bar Association (ABA) became the latest professional association to support marriage for loving, committed couples, whether they be of the opposite-sex or same-sex.

  • 2010-AUG-12: Stay removed: Judge Walker decided to remove the stay. Lacking such a stay, rulings of federal courts automatically become final 14 days after they are issued. That would make his decision final on 2010-AUG-18 at 5 PM. 2 Same-sex couples would be able to obtain marriage licenses at that time, unless the proponents are first able to obtain a stay of Judge Walker's AUG-04 ruling, either from the 9th U.S. Court of Appeals or the U.S. Supreme Court.

    However, even if the Court of Appeals initially refuses to issue a stay, same-sex couples' right to marry in California could evaporate at any time. Such events have happened in other states. Many couples were poised to marry quickly in the event that SSMs become available.

    Contained within his 2010-AUG-12 order that lifted his temporary stay, Judge Walker repeated a suggestion by the plaintiffs' lawyers: that the interveners may not have the standing necessary to appeal his AUG-04 decision. Judge Walker wrote that standing to appeal Perry v. Schwarzenegger:

    "... requires a showing of a concrete and particularized injury that is actual or imminent. ... proponents may have difficulty demonstrating ... standing. ... 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 proponentsā€™ appeal."

    He noted that the proponents of Prop. 8 did not demonstrate any harm that they would suffer if his stay was not issued. In a very unusual expression of concern for the happiness of same-sex couples, the proponents had suggested that couples who married while Walker's ruling was under appeal would live under a "cloud of uncertainty" about the future legal standing of their new marriage. They might be able to marry and to initially have their status recognized by the state. But future action by a court or by the California legislature could invalidate their marriage. Walker rejected this argument as invalid. Any such weddings would be obviously valid, just as the 18,000 same-sex couples who were married in 2009 before Prop 8 was passed were declared valid.

    On the other hand, Judge Walker wrote that staying his order would harm not only the plaintiffs and other same-sex couples in the state, but also the State of California as a whole.

    Staying the order would also prevent the children of same-sex couples who want to marry from obtaining needed protections and status.

    Normally, the defense of state laws and initiatives is undertaken by the state administration. However, in 2009, neither Governor Arnold Schwarzenegger (R) nor Attorney General Jerry Brown (D) were willing to do so. They had instead allowed proponents of Prop. 8 to enter the case as interveners to defend the proposition. Their opinion has not changed since; the State of California refused to appeal the case to the Ninth Circuit Court of Appeals.

    If the Court of Appeals rejects the proponents' appeal, then both the proponents of Prop. 8 and the plaintiffs' lawyers would probably be seriously disappointed:

    • The proponents would be unhappy because they would see marriage equality in California. Loving committed couples of all possibile gender combinations -- male-female, female-female and male-male -- could then marry. More thousands of same-sex Californian couples would attain the status, rights, and protections of marriage for themselves and their children.

    • The plaintiff's lawyers and many in the lesbian, bay, bisexual, transgender person and transsexual (LGBT) community would be unhappy because their prime goal -- to have the U.S. Supreme Court legalize SSM across the U.S. -- could not proceed.

If the Court of Appeals determines that the proponents of Prop. 8 have no standing to appeal, then Judge Walker's decision would presumably have taken force on AUG-18 and allowed future SSMs in California. That would make SSMs available in 6 U.S. States and the District of Columbia.

Late on AUG-12, the proponent's lawyers filed an emergency request, asking the Court of Appeals to intervene and block the SSMs. According to the Associated Press:

"They argued the appeals court should grant a stay of Walker's order requiring state officials to cease enforcing Proposition 8 'to avoid the confusion and irreparable injury that would flow from the creation of a class of purported same-sex marriages'. ..." 5

"San Francisco Chief Deputy City Attorney Therese Stewart, who during the trial helped argue that Proposition 8 should be overturned, said that while it will not be up to Walker to decide the eligibility issue, 'it's very realistic' that the 9th Circuit could reach the same conclusion."

" 'We allocate the decision-making authority over how to enforce and defend and prosecute the laws to the executive branch,' Stewart said. 'Do you want every Tom, Dick and Harry second-guessing what the attorney general does and challenging every ruling the attorney general chooses not to?' " 5

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. "Gay marriage ban backers appeal court ruling," The Washington Times, 2010-AUG-05, at:
  2. Bruce Hausknecht, "Donā€™t Just Take My (Prop 8) Word for it," Citizenlink, 2010-AUG-12 at:
  3. "Same-sex marriage, gay rights,", as at 2010-AUG-13, at:
  4. Paul Schindler, "Why Walker Declined to Stay His Prop 8 Order," Gay City News, 2010-AUG-14, at:
  5. Paul Elias & Lisa Leff, "Judge who overturned Calif gay marriage ban questions if Prop 8 backers can appeal his ruling," Associated Press, 2010-AUG-14, at:
  6. "California same-sex marriages on hold pending appeal," USA Today, 2010-AUG-17, Page 2A.
  7. Susan Ferriss, "Supporters pressure Brown, Schwarzenegger to defend Prop. 8 in court," The Sacramento Bee, 2010-SEP-06, at:
  8. "Schwarzenegger: Same-sex weddings should resume," USA Today, 2010-AUG-06, at:
  9. Mike Luckovich, same-sex marriage cartoon, 2010-AUG-06, at:

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Copyright © 2009 by Ontario Consultants on Religious Tolerance
Original posting: 2010-AUG-15
Latest update: 2010-SEP-06
Author: B.A. Robinson

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