The Ninth Circuit panel has stayed Judge Walker’s Prop 8 ruling. No marriages for same-sex couples on Wednesday.
This is a situation where it would be really great not to be able to say I told you so.
Tag Archives: prop 8
On Judge’s Walker’s Stay (or Whatever)
As I said, despite my caution, Judge Walker’s decision on the stay is a nice read.
My favorite part is how he takes apart the anti-equality folks’ disingenuous plea not to harm those poor gay couples by letting them getting married under a cloud of uncertainty (how nice of them to show concern for gay couples when they’ve spent years demonstrating they don’t care about us at all):
Proponents also 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…. Proponents have not, however, alleged that any of them seek to wed a same-sex spouse. Proponents admit that the harms they identify would be inflicted on “affected couples and * * * the State.†… [T]he court considers only whether the party seeking a stay faces harm, yet proponents do not identify a harm to them that would result from denial of their motion to stay.
. . .
If proponents had identified a harm they would face if the stay were not granted, the court would be able to consider how much weight to give [this] factor. Because proponents make no argument that they — as opposed to the state defendants or plaintiffs — will be irreparably injured absent a stay, proponents have not given the court any basis to exercise its discretion to grant a stay.
Boom.
Since the state government of California has decided to sit this thing out, there’s basically nobody defending Prop 8 except the anti-equality people. This also shows how crucial it is that the state government is choosing not to defend Prop 8. If only the Obama administration would do the same thing on the federal level.
Prop 8 and the Dangers of Twitter
Like many people this afternoon, I was madly refreshing a Twitter search for “prop8” and reloading the California district court’s website, over and over. Finally, at about 3:15, unsubstantiated rumors began to show up on Twitter that Judge Walker was denying the motion for a stay, meaning that same-sex couples in California would be able to get married immediately. Other twitterers then retweeted those tweets, and a live online feed of local San Francisco TV outside city hall showed a crowd of pro-equality people cheering at the apparent denial.
But I was feeling cautious. There was no decision posted online, and no official word — just rumors, with no explanation of where the rumors came from or who was supplying them.
Finally, at about 3:40, the official decision appeared online. Yes, it grants a stay.
But not right now.
Judge Walker writes:
Because proponents fail to satisfy any of the factors necessary to warrant a stay, the court denies a stay except for a limited time solely in order to permit the court of appeals to consider the issue in an orderly manner.
(Emphasis mine.)
On the last page, Judge Walker states that his decision to deny a stay is itself stayed, until August 18 at 5 p.m. PDT. That gives the Ninth Circuit six days to hear and decide an appeal of Walker’s decision to let gay couples immediately marry. Six days is a long time. It’s perfectly conceivable that the Ninth Circuit will overrule Judge Walker and issue a stay. Now, Judge Walker lays out a very strong case for why there should not be a stay, and at 11 pages it makes a great, short read. But who knows what the Ninth Circuit will do?
Yet there are still people all over Twitter expressing happiness and congratulations. I don’t get it. I don’t want to be a party pooper, but look, this thing is not over. The Ninth Circuit could slam it down before any gay couples can get married again.
This is exactly why you should take unsubstantiated tweets with a grain of salt until you actually see proof of something. It’s silly and irresponsible to tweet to all your followers that the motion has been denied, on an issue of this emotional magnitude, just to try and be the first person to break the news, unless you’ve actually read the decision yourself.
Maybe the Ninth Circuit will do the right thing. I hope so. But six days is ages. The Ninth Circuit could overturn Judge Walker tomorrow. Or even tonight.
Tweet responsibly.