Magistrate Doubts Gay Rite Ban's Backers Can Appeal-00-7225

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The federal judge who overturned California's same-sex marriage ban has more bad news for the measure's sponsors: He not only is unwilling to keep gay couples from marrying beyond next Wednesday, he doubts the ban's backers have the proper to challenge his ruling.

Chief U. S. District Judge Vaughn R. Walker on Thursday rejected a request to delay his decision striking down Proposition 8 from taking effect until high courts may take up an appeal lodged by its supporters. One of the reasons, the judge said, is he's not certain the proponents have the authority to appeal since they would not be affected by or responsible for implementing his ruling.

By contrast, same-sex couples are being denied their constitutional rights day after day they are prohibited from marrying, Walker said.
The ban's backers "point to harm resulting from a 'cloud of uncertainty' surrounding the validity of marriages performed after judgment is entered but before proponents' appeal is resolved," he said.

"Proponents have not, however, argued that any of them seek to wed a same-sex spouse. "

Walker gave opponents of same-sex ...
... marriage until Aug. 18 at 5 p. M. To get a ruling from the 9th U. S. Circuit Court of Appeals on whether gay marriages should commence before the court considers their broader appeal. Their lawyers filed an request asking the 9th Circuit to intervene and block the weddings on an emergency basis late Thursday.

They argued the appeals court should allow a remain of Walker's order calling for state officials to cease enforcing Proposition 8 "to refrain from the confusion and irreparable injury that would flow from the creation of a class of purported same-sex marriages. "

Depending on how the 9th Circuit rules, same-sex couples could commence tying the knot in California as early as next week or be put off while the appeal works its way through the court and potentially the U. S. Supreme Court in addition.

California voters passed Proposition 8 as a state constitutional amendment in November 2008, five months after the California Supreme Court legalized same-sex unions and an estimated 18,000 same-sex couples already had married.
In refusing to suspend his ruling for over more than one days, Walker agreed with the lawyers who sued to strike down the ban that it's unclear if Proposition 8's sponsors have legal standing to appeal.
Though he allowed the coalition of religious and conservative groups that sponsored the measure to defend the lawsuit for the duration of the 13-day trial over which he presided, the judge said appellate courts have dissimilar rules for resolving when a party is eligible to challenge a lower court.
Grounded on his interpretation of those rules, it appears the ban's sponsors may only appeal his decision with the backing of either Gov. Arnold Schwarzenegger or Attorney General Jerry Brown, Walker said. But that seems unlikely as both officials denied to defend Proposition 8 in Walker's court and said last week they see no reason why gay couples must not be competent to tie the knot now.

Walker similarly turned aside arguments that marriages performed now could be thrown into legal chaos if Proposition 8 is later upheld by an appeals court. He pointed to the 18,000 same-sex couples who married legally in the five months that gay marriage was legal in California as evidence.
San Francisco Chief Deputy City Attorney Therese Stewart, who for the duration of the trial helped argue that Proposition 8 ought to be overturned, said that while it wouldn't 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 each Tom, Dick and Harry second-guessing what the attorney usual does and challenging each ruling the attorney usual chooses not to? "

The ban's backers addressed the potential for such a roadblock in their emergency remain request, saying California's strong citizen initiative law permits ballot measures proponents to defend their interests when state officials refuse to.
"We are convinced we do have standing to seek the appellate review here, and we realize this case has just began and we will get the decision overturned on appeal," said Jim Campbell, an Alliance Defense Fund lawyer who is part of the legal team defending Proposition 8.

Other legal analysts think the appeals court will allow the group that raised $40 million to pass Proposition 8 to formally challenge Walker's ruling.

"What Judge Walker's ruling means is you may sponsor a proposition, direct it, exploration it, work for it, raise $40 million for it, get it on a ballot, successfully crusade for it and then have no ability to defend it independently in court," said Dale Carpenter, a University of Minnesota constitutional law professor who supports same-sex marriage. "And then a judge maybe let you be the only defender in a full-blown trial and then says, 'by the way, you never can defend this.' It just seems very unlikely to me the higher courts will buy that."

By PAUL ELIAS and LISA LEFF Associated Press Writer.

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