Thursday, August 12, 2010

Prop 8 Judge’s Denial of Stay Order is Too Cute by Half

Federal District Judge Vaughn Walker today denied a motion to stay his ruling declaring Proposition 8 unconstitutional. His written justification for denying the motion provides ample evidence that Walker should have recused himself from the Prop 8 trial. In responding to the reasons Prop 8 proponents offered for a stay pending appeal, Walker shows himself to be merely willful and more than a little cutesy.

In addressing the argument that a stay is warranted given the proponents likelihood of success on appeal, Walker, astonishingly argues that the proponents likely don’t even have standing to appeal. Walker argues, “California does not grant proponents the authority or the responsibility to enforce Proposition 8.”

And here the cute begins. He argues that only the state has that authority:

In Lockyer v City & County of San Francisco, the California Supreme Court explained that the regulation of marriage in California is committed to state officials, so that the mayor of San Francisco had no authority to “take any action with regard to the process of issuing marriage licenses or registering marriage certificates.”

The right of citizens to defend a democratically enacted law in court is here rendered akin to Mayor Newsom’s unilateral and illegal decision to start issuing same-sex marriage permits, ie., both are illegitimate. Since only the state can regulate marriage, Walker argues, the only people with standing to challenge his ruling would be the governor or attorney general. Since neither of them are likely to do so, there is no likelihood of an appeal even progressing, Walker argues. So no stay.

This is really extraordinary – the implication being that if the people of a state pass a law that the governor doesn’t like, and a trial court (with an obviously biased judge) throws out the law, then the people have no right to appeal.

If that is not bad enough, Walker’s final argument should cause alarm to every American regardless of their position on Prop 8. Walker argues there is no “public interest” in a stay, despite the fact that the public very clearly expressed their interest at the ballot box. Here Walker explains the proponents’ position:

Proponents also point to the public interest as reflected in the votes of “the people of California” who do not want same-sex couples to marry, explaining that “[t]here is no basis for this Court to second-guess the people of California’s considered judgment of the public interest.”

His tyrannical response immediately follows:

The evidence at trial showed, however, that Proposition 8 harms the State of California.

So the people vote democratically that marriage is to be between one man and one woman. A partnered, gay judge decides that would be bad for the State of California. Therefore, the people of the State of California no longer have any business pursuing what they believe is in their interest. The judge has decided what their interest is.

Walker then backs this up citing the aforementioned support of Governor Schwarzenegger and Attorney General Brown for same-sex marriage, as if this also defines the interest of the people of California, notwithstanding their clear vote to the contrary.

Walker’s full ruling is here. I’ll be following what actual legal minds have to say about it over the next few days. Certainly the 9th Circuit will review it before it goes into effect August 18. But my first impression is that Walker’s stay ruling is even more pernicious than his vain original ruling.