No same-sex couples are set to marry legally on this afternoon in California – but they could be legally wed by next week at this time.
Finding that continuing to keep gay and lesbian couples from marrying would ''demonstrably harm'' them, the judge who struck down Proposition 8 this past week as unconstitutional issued an order this afternoon setting 5 p.m. Wednesday, August 18, as the deadline for appellate court action to keep his ruling from going into effect.
In response to a request from the proponents of Proposition 8, U.S. District Court Judge Vaughn Walker denied a stay of his August 4 ruling striking down Proposition 8 but gave the proponents a brief window of time to appeal that decision to the U.S. Court of Appeals for the Ninth Circuit.
Walker found that ''proponents fail to satisfy any of the factors necessary to warrant a stay,'' which include showing that there is a strong likelihood they will succeed on appeal, that they will be ''irreparably injured'' if the ruling goes into effect while the decision is being appealed, that others would not be ''substantially injure[d]'' if there is a stay and that the stay is in the public interest.
Finding that the proponents of the proposition ''failed to articulate even one specific harm they may suffer as a consequence of the injunction'' of Proposition 8, he found that they are unlikely to succeed on appeal.
In addition to the background of the merits of the proponents' case, Walker also addressed a question raised by the plaintiffs about whether the proponents even have the ability to bring an appeal of the judge's ruling. This issue, referred to as standing, is in question because none of the state defendants – the ones charged with enforcing Proposition 8 – currently have expressed any opposition to Walker's ruling. If none of state defendants appeal, there is an unresolved legal question as to whether the proponents alone can appeal the court's ruling to the Ninth Circuit.
After detailing those issues, Walker concluded, ''As regards the stay … the uncertainty surrounding proponents' standing weighs heavily against the likelihood of their success.''
Walker's order also concluded that any same-sex marriages performed while an appeal is progressing through the Ninth Circuit and possibly the Supreme Court would be valid regardless of the ultimate outcome of the case.
''The court has the authority to enjoin defendants from enforcing Proposition 8,'' Walker wrote. ''It appears, then, that marriages performed pursuant to a valid injunction would be lawful, much like the 18,000 marriages performed before the passage of Proposition 8 in November 2008 [which were upheld as valid].''
Walker found that none of the other factors for a stay were met, concluding, in one instance, that ''proponents do not identify a harm to them that would result from denial of their motion to stay.''
The judge also later found that ''a stay would force California to continue to violate plaintiffs' constitutional rights'' and that ''an injunction against enforcement of Proposition 8 is in the public's interest.''
In the absence of a contrary ruling from the Ninth Circuit or the U.S. Supreme Court, then, Walker ordered that at 5 p.m. PDT August 18 ''defendants and all persons under their control or supervision shall cease to apply or enforce Proposition 8.''