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Analysis of Judge Walker’s Decision Denying Stay of his Prop 8 Order

August 12th, 2010 No comments

Earlier this afternoon, Judge Vaughn Walker issued another explosive ruling in the Prop 8 case: There will be no stay of his decision declaring Prop 8 unconstitutional while the case works its way up through the appellate process. He did, however, allow the current stay to remain in place through next Wednesday, August 18 (at 5 pm PDT) to allow the Prop 8 proponents (or, I suppose, the state or AG) to ask the appellate court to hear and grant an emergency appeal of this latest ruling.

For all of the political posturing on the wisdom of the stay, the legal analysis is really quite straightforward. In deciding whether to grant a stay, courts consider four factors: (1) whether the party seeking the stay has a likelihood of success on the merits; (2) whether the party seeking the stay would suffer irreparable harm absent the stay; (3) whether some other interested party would be harmed by the stay (or the lifting of it); and (4) whether the stay is in the public interest.

As Walker notes, the first two of these factors are the most important. If neither of those supports granting the stay, recent Supreme Court precedent suggests that the analysis needn’t proceed to the last two. The Court has also emphasized that the party seeking the stay must show not a chance, but a likelihood of success on the merits, and that a judge has wide discretion on whether to issue a stay.

A fairly heavy burden, in all. And the Prop 8 proponents didn’t come close.

First, the judge who’d spent months trying and deciding the case against them wasn’t apt to find that they now have much chance of success on the merits. Worse for them, it’s not even clear that they have standing to appeal (for reasons I explained here, and that Walker made clear are serious obstacles).  Likelihood of success on the merits of the claim is hard to argue when it’s entirely possible (probable, I’d say) that you aren’t even a proper appellant. You can’t win if you’re not even in the game.

So really, this came down to irreparable harm. And the Prop 8 proponents had a fatal problem on this score. In fact, Judge Walker’s analysis of why the Prop 8 proponents failed to satisfy this standard dovetails nicely with one of the points I’ve been making all along about the legal flaccidity of the case against marriage equality:

The irreparable harm is suffered entirely by the couples who can’t marry, not by the state (which is, remember, the “real” defendant here) or anyone else. Moreover, the Prop 8 proponents aren’t the “state,” despite their efforts to conflate their interests and the states’.  (In fact, the state’s position against the stay puts lie to the argument that the Prop 8 proponents and the state have a community of interest, let alone identity.)

And the court didn’t think much of the Prop 8 proponents’ newly discovered concern for the other parties — the same-sex couples. According to proponents, these marriages would be in a confusing limbo were they permitted to happen before the case is fully resolved. But, the court noted, the couples can make that call for themselves, and in any case, the on-again/off-again marriage right situation has already been dealt with in California, and the couples’ status is clear enough: Those marriages entered into between the Supreme Court’s order requiring marriage equality and the passage of Prop 8 taking that right away are valid.

The court could have stopped there, but nonetheless moved on to the third factor: harm to other parties. The failure of the Prop 8 proponents to show harm for purposes of the stay mirrors the problem they had at trial — the trial they rightly feared. Not a shred of evidence supports their conclusion of harm, and their speculative tales of apocalypse can’t stand, legally or morally, against the real and obvious harm suffered by gay and lesbian couples and our children.

But wait! There’s no harm to same-sex couples in having to wait, they argued, because domestic partnership law confers the same benefits and, after all, if getting married were that urgent, the couples would have done so back in 2008 when they had the chance. I’m not going to waste time or your intelligence by responding to these arguments.

The one place that the Prop 8 proponents have a colorable argument is in the fourth factor: the public interest. From their perspective, the public expressed its “interest” in passing Prop 8, and — to continue this line of argument — that decision is entitled to respect. Judge Walker rejected this conclusion based on evidence at trial that Prop 8 actually harms the state, and supports its conclusion with a citation to the Attorney General and a concern that taking away rights is harmful to all citizens.

This last point could be a bone of contention — if the reviewing (Supreme?) court decides that, in this case, the fourth factor should weigh more heavily than it has otherwise suggested it should. Then, we’d have to consider who gets to decide what the public interest is, and how such decisions are to be reviewed.

Again, let’s not lose sight of one important fact: The court gave the supporters time to appeal. So nothing may happen for awhile, yet. But every decision exposing the bankruptcy of the opposition arguments is a victory.

Oh, Perry! (Hold On)

January 10th, 2010 No comments

In case you were wondering whether the Prop 8 defenders believe their arguments are sound, wonder no more: They have gone so far as to seek, from Supreme Court Justice Anthony Kennedy (who decides such applications for the Ninth Circuit, of which California is a part), an emergency stay of the California court’s order to allow a delayed broadcast of the trial proceedings. The trial is to start tomorrow, with the youtube broadcast to be offered on time delay (maddeningly, we don’t know when the video will be available; later the same day, or early the following day).

Does this action sound to you like that of a group confident in the strength of its arguments? Me, neither. The stay application cites the prospect of witness intimidation and harassment if this show trial is broadcast. Translation: We’re much better off if people can’t see that we have no good arguments against allowing gay couples the same right to marry that heterosexual couples take for granted.

One interesting tea leaf to read here: Justice Kennedy is among the Court’s most consistent defenders of the First Amendment, reading its guarantees quite broadly. Thus, if he does grant the stay, the prospects for ultimate success at the Supreme Court dim. His vote is likely decisive. And Kennedy probably can’t dodge the issue by asking the full Court to weigh in, because the other eight justices would likely split 4-4, throwing it right back to him.1 There’s something fitting about Kennedy’s role here: He can decide this, all by himself. We might as well say that about marriage equality, generally.

  1. I know, this is much too simple, because this isn’t the same as deciding the marriage issue on the merits. And the First Amendment issue could split the Court in a different way. Yes, but if Bush v. Gore taught us anything, it’s that theory and doctrine will be subordinated to political result when the chips are down. So I don’t expect the conservative wing of the Court to do anything that would diminish, even hypothetically, the case against marriage equality which they may soon have to hear.