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Proposition 8: Stay Denied by Judge Vaughn Walker

By Tanya Roth, Esq. on August 12, 2010 | Last updated on March 21, 2019

Depending on whom you ask, the decision of U.S. District Court Chief Judge Vaugh Walker to refuse to grant the stay motion by the proponents of Proposition 8 is either another victory for those supporting same sex marriage, a statement that nothing will change right now, or a green light for the opposition to Prop. 8, as no marriages can yet take place. In some ways, all these conclusions are correct.

Judge Walker issued his Order denying the stay on his decision to overturn Proposition 8 at about 12:30 PST, on August 12. In his order, the judge found that none of the arguments offered by the the proponents of Prop 8 were sufficient to warrant the stay. The judge reviewed the four factors necessary for granting a stay: 1. would parties seeking a stay be likely to win on appeal, 2. would parties seeking the stay be irreparably harmed if the stay were denied, 3. would the stay if granted, harm any other party or person, and 4. would the stay be in the public interest or not. The law requires the judge give the most weight to the first two requirements.

Judge Walker considered all four factors and put his emphasis on the first two. The judge doubted the "likely hood of success" of the proponents appeal for two reasons. First, because he believes the proponents may not have standing (the right) to appeal on their own without being joined by the state as a defendant. Second, the judge found the evidence supporting Prop 8 to be lacking. The proponents did not make their case to him, and Judge Walker finds it unlikely they will make a more convincing case to the court of appeals. "Proponents had a full opportunity to provide evidence in support of their position and nevertheless failed to present even one credible witness on the government interest in Proposition 8," wrote Judge Walker. (Order, p.6)

The last two elements were not proven to the Judge's satisfaction either, according to the Order. Judge Walker could find no immediate harm would come to the proponents, instead finding "... the trial record left no doubt that Proposition 8 inflicts harm on plaintiffs and other gays and lesbians in California." (Order, p.9 ). Finally, the judge said that the public interest was better served in denying than in granting the stay.

So after all the law is applied, what is the actual result? The stay is denied, but the Order enforcing that decision will not take effect until August 18, 2010. Now, proponents have until that day to appeal the judge's decision to the 9th Circuit of Appeals. At the time, the 9th Circuit will allow same sex couples to marry if they uphold the Order by Judge Vaughn Walker, or require same sex couples to wait until the appeals process is over if the court overturns the it. In end, those that say nothing really changes today are the most correct.

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