Box Turtle Bulletin

Tea Leaves: Prop 8 Proponents will not have standing

I am now going to gaze into my crystal ball, read the tea leaves, check in with Sybill Trelawney, and make a prognostication: the Proponents of Proposition 8 in Perry v. Schwarzenegger will be denied standing at either the Ninth Circuit or the US Supreme Court level.

There are four reasons why I think it likely that the Proponents will not be found to have standing.

The first is case law. I’m not an attorney, I don’t have extensive knowledge of the patterns of judicial rulings which would apply to the case. But I have read the filings of both sides in this case and it appears to me that the arguments for denying standing are straight-forward and based on clear rules while those of the Proponents are based on exceptions and possibilities and “gosh darnit but we paid for it.”

Second, it appears that the Ninth Circuit is not seeing standing at present. The Ninth issued its order sua sponte, or without request: “The court sua sponte orders that this appeal be expedited pursuant to Federal Rule of Appellate Procedure 2.”

However, there were filings for both appeal and for expediting the case. To my limited understanding of the law, either the Ninth erred in its language or it isn’t recognizing the filings of one of the parties as being official at present. A pretty obvious guess would be that the Proponents are not considered to have standing at present, and if there were any question about that presumption, it is cleared up by this sentence: “In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing.”

Third, the Ninth references Arizonans For Official English v. Arizona as the case to which they are looking to see if there is standing. The case went something like this:

In 1988, Arizona voters narrowly passed Proposition 106, a constitutional amendment to require all official acts of the state to be conducted in English. Maria Yniguez, a state employee, sued claiming that she used both English and Spanish in her work and that the proposition violated her First Amendment rights. The Governor was the official defendant.

A Federal District Court judge found that the amendment was overly broad and unconstitutional and the Governor decided not to appeal. The Federal judge denied that the Attorney General could be given standing and also denied standing to Arizonans for Official English (AOE), the committee that wrote, funded, and campaigned for Proposition 106.

On appeal, the Ninth Circuit countermanded the judge and found that AOE, and its chairman Bob Park, had standing to appeal the judge’s decision.

Meanwhile, Yniguez had quit her state job to go work for the private sector, which meant that there was no Plaintiff in the case. But the Ninth decided that because Yniguez had sued for damages, the case was not moot and could continue. They upheld the judge’s ruling that the proposition was unconstitutional and awarded Yniguez damages.

However, the Supreme Court unanimously ruled that because Yniguez no longer was an employee then the entire case was moot and they tossed it out. So, the primary ruling of AOE v. Arizona was not about the standing of intervenors at all.

However, and this is the important part, in addition to ruling the case moot, Judge Ginsburg wrote the following:

(a) Grave doubts exist as to the standing of petitioners AOE and Park to pursue appellate review under Article III’s case or controversy requirement. Standing to defend on appeal in the place of an original defendant demands that the litigant possess “a direct stake in the outcome.” Diamond v. Charles, 476 U.S. 54, 62 . Petitioners’ primary argument–that, as initiative proponents, they have a quasi legislative interest in defending the measure they successfully sponsored–is dubious because they are not elected state legislators, authorized by state law to represent the State’s interests, see Karcher v. May, 484 U.S. 72, 82 . Furthermore, this Court has never identified initiative proponents as Article III qualified defenders. Cf. Don’t Bankrupt Washington Committee v. Continental Ill. Nat. Bank & Trust Co. of Chicago, 460 U.S. 1077. Their assertion of representational or associational standing is also problematic, absent the concrete injury that would confer standing upon AOE members in their own right, see, e.g., Food and Commercial Workers v. Brown Group, Inc., 517 U. S. ___, ___, and absent anything in Article XXVIII’s state court citizen suit provision that could support standing for Arizona residents in general, or AOE in particular, to defend the Article’s constitutionality in federal court. Nevertheless, this Court need not definitively resolve the standing of AOE and Park to proceed as they did, but assumes such standing arguendo in order to analyze the question of mootness occasioned by originating plaintiff Yniguez’s departure from state employment. See, e.g., Burke v. Barnes, 479 U.S. 361, 363 , 364, n. Pp. 18-21.

This is fairly clear that while the SCOTUS did not “definitively resolve the standing” of the supporters of the proposition, it stated its “grave doubts”, found their argument “dubious”, called their assertion of associational standing “problematic”, found no language in the proposition itself that gave them standing, and pretty much tossed them out on their ear.

This appears to be a fairly close parallel. And by the court referencing this case – and by implication eliminating or de-emphasizing all other possible arguments (Strauss v. Horton, etc.) – it gives the Proponents a significantly difficult challenge to overcome

Fourth and finally, it is my impression that the SCOTUS does not like to address controversial issues before it is ready to do so. And standing is one of their favorite ways of saying “go away, we don’t want to talk about that now.”

One case that comes to my mind is Elk Grove Unified School District v. Newdow. Michael Newdow, a prominent atheist, sued the Elk Grove Unified School District for requiring his daughter to say the Pledge of Allegiance, including the words “one nation under God.”

A federal judge found the Pledge violated the Establishment Clause and the Ninth Circuit agreed. But the SCOTUS had an out. While three were ready to find that the Pledge is not unconstitutional (and Scalia recused himself), the four liberal judges and Kennedy all found that because Newdow’s ex-wife had full custody of their child, and because she was a Christian, then Newdow had no standing to sue over her education, religious or otherwise. (Subsequently the Ninth reversed itself on another case and the SCOTUS did not hear an appeal.)

I’m thinking that if “Hey, that’s my kid” isn’t enough to have standing, then “Hey, that’s my initiative” isn’t going to fare much better if the court is not yet ready to hear a case on the constitutionality of same-sex marriage. Surely the father of a child has more standing than the father of a proposition.

Now obviously, this is all guesswork. And some of our fine legal scholar readers may poke enough holes in my logic to let is serve as a sieve. But this is what my crystal ball is telling me today.

Sua Sponte And Prop 8 Standing

I love BTB readers. One sharp-eyed commenter explains the importance of this line in yesterday’s order from the Ninth Circuit Court of Appeals:

The court sua sponte orders that this appeal be expedited pursuant to Federal Rule of Appellate Procedure 2. The provisions of Ninth Circuit Rule 31-2.2(a) (pertaining to grants of time extensions) shall not apply to this appeal.

Our commenter writes:

Sua sponte! The court wrote it was taking this case “sua sponte” – on its own initiative – since, as it states, Prop8 backers clearly have no standing to make this appeal.

More specifically it seems to me, the court decided to expedite the case on its own initiative. But this may hint at the extent to which the court is suspicious about the Alliance Defense Fund’s standing to continue to defend Prop 8. The court also  specifically  order them “to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing.”

The court went on to demand that ADF address Arizonans For Official English v. Arizona, the 1997 case in which the U.S. Supreme Court unanimously slapped down the Ninth Circuit Court for violating Article III of the U.S. Constitution after an Arizona PAC stepped in to defend a constitutional amendment that had been passed as part of a ballot initiative but declared unconstitutional in Federal District Court.

Ninth Circuit stays Perry ruling

The Ninth Circuit Court of Appeals has just ruled:

Appellants’ motion for a stay of the district court’s order of August 4, 2010 pending appeal is GRANTED. The court sua sponte orders that this appeal be expedited pursuant to Federal Rule of Appellate Procedure 2. The provisions of Ninth Circuit Rule 31-2.2(a) (pertaining to grants of time extensions) shall not apply to this appeal. This appeal shall be calendared during the week of December 6, 2010, at The James R. Browning Courthouse in San Francisco, California.

The previously established briefing schedule is vacated. The opening brief is now due September 17, 2010. The answering brief is due October 18, 2010. The reply brief is due November 1, 2010. In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing. See Arizonans For Official English v. Arizona, 520 U.S. 43, 66 (1997).
IT IS SO ORDERED.

This is a partial victory. Ted Olson had requested that if the stay was granted, that the case be expedited and gave suggested dates. These dates are very close to those requested by Olson.

If the appeal is to begin in the first week of December, it will be over before the new governor and state attorney general are sworn in, whomever they may be.

Jim’s Update: Another key point is that the Court orders the Alliance Defense Fund to show why their appeal should not be dismissed for lack of standing. This is more great news, since it’s still not even clear that the court will actually hear an appeal.

In the meantime, this will probably push the possible resumption of same-sex marriages until sometime in 2011, since it can take anywhere from several weeks to several months following oral arguments for the court to issue its decision.

Appeal fears

Some of those who were closely watching Perry v. Schwarzenegger are now concerned about the prospect of going to the Supreme Court and possibly losing big. And that fear is not coming only from our community; anti-gays also have some who advise to quit now.

Right Wing Watch has transcript of a conversation between the WallBuilders’ David Barton, and the AFA’s Tim Wildmon and Marvin Sanders:

Barton: Right now the damage is limited to California only, but if California appeals this to the US Supreme Court, the US Supreme Court with Kennedy will go for California, which means all 31 states will go down in flames, although right now this decision is limited only to California.

So there’s an effort underway to say “California, please don’t appeal this. I mean, if you appeal this, its bad for you guys but live with it, but don’t cause the rest of us to have to go down your path.”

Wildom: So you think the better situation here would be California not to appeal …

Barton: Well, I’m telling you that that’s what is being argued by a lot of folks now because the other Supreme Court attorney who watched this from afar said “on no, you left too many arguments on the table, you stayed technical.” And now, knowing what Kennedy has already done in two similar cases to this and knowing that he’s the deciding vote, the odds are 999 out of 1000 that they’ll uphold the California decision.

If they do, there’s not a marriage amendment in the country that can stand. And so the problem is that instead of California losing its amendment, now 31 states lose their amendment. And that won’t happen if California doesn’t appeal this decision. It’s just California that loses its amendment.

This appeal really is a high stakes game.

Proponents reply to Olson’s rebuttal

Charles Cooper, for the Proponents, has filed his response to Ted Olson’s filing opposing a stay. And, as has been noted in the past, he appears to be using the spaghetti theory: throw enough against the wall and maybe something will stick.

This response seems to me to be taking an approach that has, up til now, not been given much emphasis: the “we’re just not ready yet” argument.

It was thus entirely reasonable for Californians, like the vast majority of people throughout the world, to favor preserving the traditional definition of marriage, as they continue to study the results of experiments with same-sex marriage that are now unfolding in a handful of states and foreign countries.

I think, however, that he may have difficulty in convincing a court that it truly was the Proponents intentions to study the results of those states and nations which do have marriage equality.

Most of this filing is just a repeat of what has already been said. But Cooper made one statement that – to my thinking – may not be to his advantage.

Baker v. Nelson, 409 U.S. 810 (1972), mandates reversal of the district court’s decision, see Stay Mtn. 25-26, and Plaintiffs’ attempts to evade that decision all lack merit. First, Plaintiffs claim this case is different because Proposition 8 “stripped” homosexuals of a right recognized by the California Supreme Court in the Marriage Cases decision. But if it was rational for California to adopt and maintain the traditional opposite-sex definition of marriage throughout its history, it was equally rational for California to restore that definition by enacting Proposition 8.
…
After all, the California Supreme Court’s 2008 decision invalidating the State’s 159-year-old definition of marriage was no more final than was the earlier California Court of Appeal decision upholding it. It was
reviewed and overturned by a higher tribunal—the People themselves.

Except that for the entire history of the state, the constitution was being violated by the state’s definition. That this violation was not recognized until 2008, did not make it less true. And the People did not overrule the Court’s opinion as to whether the constitution was violated, but rather changed that constitution so as to put in language that would give validation to the otherwise illegal definition.

And it was on notions similar to those advanced in In Re Marriages – but in the Federal Constitution rather than the state – that Judge Walker found similar violation. Using Cooper’s logic, if the People wish to be a higher tribunal, then they would need to do as they did in California and change the US Constitution.

Chemerinsky on standing

Erwin Chemerinsky, constitutional scholar and dean of the UC Irvine School of Law, wrote an op-ed for the LA Times on why, if the court follows well-established law, they will need to dismiss the Prop 8 Proponents’ appeal of Judge Walker’s ruling in Perry v. Schwarzeneger on grounds that those who filed it have no standing:

The Supreme Court has explicitly held that standing to appeal is required and that being an intervenor is insufficient to meet this requirement. In one case, the state of Illinois refused to appeal a federal judge’s ruling striking down a law regulating abortion, and a doctor who had intervened tried to appeal to defend the law. The Supreme Court held that the doctor lacked standing and ordered the appeal dismissed.

In another case, voters who supported an Arizona initiative declaring English to be the official language of the state tried to appeal to defend the law. The Supreme Court unanimously ordered the appeal dismissed and expressed “grave doubt” as to whether supporters of an initiative have standing to appeal to defend it.

Olson / Boies respond to appeal for stay

In their appeal to the Ninth Circuity of the Judge’s denial of stay in Perry v. Schwarzenegger, the Proponents claim that they are likely to succeed on the merits due to Baker v. Nelson, a 1971 case out of Minnesota. In response Ted Olson trounces that argument using the same thinking that we discussed: Romer v. Evans, Lawrence v. Texas, and even Christian Legal Society v. Martinez all reflect subsequent equal protection and due process jurisprudence has fatally undermined Baker.

He also quotes Hernandez-Montiel v. INS (a case of a Mexican “gay man with female sexual identity” seeking asylum) in which in 2000 the Ninth Circuit found that that sexual orientation is immutable and fundamental to one’s identity, homosexuality is as deeply ingrained as heterosexuality, and that gay and lesbian individuals should not be required to abandon their identity to gain access to fundamental rights.

Maggie Gallager and other “protectors of marriage” are fond of arguing that marriage is tied to procreation and thus is reserved for those relationships open to procreation. Olson is eloquent (and snarky) in slapping that down.

Proponents next argue that they are likely to prevail on Plaintiffs’ due process claim because the right to marry has always been understood as excluding same-sex couples and because marriage is inextricably tied to procreation. Apparently, on Proponents’ view, conditioning a marriage license on a couple’s willingness or ability to procreate would be “administratively burdensome and intolerably intrusive, [and] unreliable” (Stay Mtn. 35), but not barred by any principle of due process. According to Proponents, only those who can procreate have a due process right to marry; the rest of the citizenry enjoys access to marriage only for as long as the government (or a plebiscite majority) permits. This argument is baseless, as the district court found.

It also appears that I did not give adequate attention to one of the arguments made by the Proponents in seeking appeal (perhaps the only argument that they actually believe). They argued – in language that appeared more benign at first inspection – that marriage rights can be denied to people on morality or religious grounds. While Lawrence said you can’t make homosexuality illegal purely out of moral or religious grounds, they argued, the State should still be able to give heterosexuality “official recognition and support.”

Olson’s response was mocking:

This cannot be a serious argument: According to Proponents, the government cannot jail gay men and lesbians, but it can withdraw from them anything else that the government might describe as a benefit—including the fundamental right of marriage. Taken at face value, this argument would also permit the government to withdraw from gay and lesbian citizens the right to vote (because they might vote for persons who do not reject them as immoral), the right to receive a driver’s license (because it might permit the assertedly immoral elements to congregate), or the right to laws protecting them from discrimination. But see Romer, 517 U.S. at 627.
…
In regulating gay and lesbian conduct, Texas’s anti-sodomy law targeted gay men and lesbians for who they are. Lawrence stands for the proposition that mere moral disapproval of a group of citizens, without more, is not a rational basis to treat them unequally. This is no less so when the price affixed to one’s status is the withdrawal of fundamental rights as opposed to conviction for a crime.

Olson goes on to dismantle the Proponents’ arguments that they have standing, to point out that they are not harmed by the ruling, and laughs off the idea that the Proponents want a stay so as to protect gay couples from confusion: “For the people who put Proposition 8 on the ballot to assert the interests of gay and lesbian couples as a basis for continuing to exclude them from marriage is a true case of the fox guarding the henhouse.”

The City and County of San Francisco also weighed in with a response. In their filing, San Francisco took on the Proponents’ claims of standing for appeal by reviewing their legal citings case by case and provided the context and law of each, and argue strongly that they should be determined to lack standing.

It is one thing for an individual sponsor to intervene in trial court proceedings – perhaps to provide the court with a different perspective than that provided by the State’s representatives. It is quite another to allow an individual sponsor of a legislative measure to replace the State’s representatives on a decision so important as whether to appeal.

Mind-NOMingly boring rally in Harrisburg

The National Organization for Marriage must be dispirited by the recent rulings for marriage equality. But they can take hope from their latest stop on their Tour of Mostly-Empty City Plazas. Because in Harrisburg, PA, they got more than a couple dozen supporter and – for the first time in a long time – outnumbered the counter-protesters. The Tour Tracker is reporting that NOM’s supporters numbered about 75 as compared the 53 protesters.

But those were probably the only rays of light in an otherwise dull and gloomy day.

The Trial Tracker reports today’s rally to be particularly dull and uninspiring. That may well be due to the growing realization on the part of NOM’s leaders that they are ineffectual and, at this point, just going through the motions.

And so far NOM’s Summer for Marriage blog is choosing to pretend as though there was no rally today. Instead, Brian Brown is ranting about Judge Walker’s decision to deny a stay on his motion.

When a lower judge makes an unprecedented ruling, that totally overturns existing Supreme Court precedent, the normal thing for that judge to do is to stay his decision, and let the higher courts decide in an orderly fashion that respects the rule of law, if he’s right, or if he’s way off-base. Judge Walker’s ruling is more evidence he is not a neutral referee, he’s an activist on this issue. He doesn’t even want his ruling ignoring Supreme Court precedent and imposing gay marriage against the expressed wishes of the electorate appealed to the Ninth Circuit…

The Proponents, in their appeal to the denial of stay, also make a great deal about this “existing Supreme Court precedent.” You’ll notice that Brian Brown is not providing much information about this precedent, other than to demand that it trumps Perry v. Schwarzenegger. And that’s probably because it is a case from 1971.

In May 1970 Jack Baker and James McConnell applied for a marriage license in Hennepin County, Minnesota. They were denied. They sued and lost at district court and in appeal at the Minnesota Supreme Court. They appealed to the US Supreme Court but the SCOTUS did not hear their appeal for “want of a substantial federal question.”

Normally, a refusal to hear a case is not considered precedent on the merits of the case. However, anti-marriage activists argue because that this case came to the Court through mandatory appellate review, then therefore it is by default a judgment on the merits of the case and establishes precedent which all lower courts must follow for perpetuity.

The Proponents also discuss Adams v. Howerton, a 1982 immigration case in which the Ninth Circuit ruled that Adams and his same-sex non-legal husband were not married and that the Federal Government has a rational basis for refusing to recognize this marriage.

But while relying on those cases may have been valid in, oh say 1984, it hardly lends itself to ranting indignation in this case.

Since that time, Romer v. Evans has determined that an initiative cannot be designed solely to disadvantage a class of people and Lawrence v. Texas determined that a state cannot legislate based solely on moral disapproval of a class of people. It was not necessary that these two cases deal with gay issues for them to apply to Perry v. Schwarzenegger, but it does make them impossible to ignore.

Another case that Brown likes to reference – but which is ignored by the Proponents – Citizens for Equal Protection v. Bruning. This was a 2006 ACLU challenge to Nebraska’s DOMA constitutional amendment. A lower court found it to be an unconstitutional violation of the Equal Protection Clause, but the Eighth Circuit reinstated the ban. I am not certain why both Judge Walker and the Proponents have not referenced this case.

Prop 8 proponents request stay from 9th Circuit

As expected, the supporters of Proposition 8 who argued in defensed of the amendment in Perry v. Schwarzenegger (hereafter called the “Proponents”) have requested that the Ninth Circuit Court of Appeals stay Judge Walker’s decision. But I was amused at the language they used.

It is thus imperative that a stay pending appeal be entered on or before August 18, 2010 at 5 p.m. to avoid the confusion and irreparable injury that would flow from the creation of a class of purported same-sex marriages.

Purported. They just couldn’t help themselves. They had to use the legal equivalent of scare quotes.

And is this appeal bitter? Oh, you betcha.

And their objection to the ruling: the judge relied on testimony rather than “legislative facts”, (those that were not presented in court and subjected to cross-examination and rebuttal, but rather could be read in books). And they claim that their lack of credible witnesses are the fault of the judge who scared them away.

It appears that the basis upon which they wish to appeal is that the judge relied on the testimony of witnesses rather than social presumption.

Ninth Circuit may not be favorable to Prop 8 supporters

The next steps that the supporters of Proposition 8 must do convince the Ninth Circuit 3-judge panel that they have standing for an appeal and meet the requirements for a stay in the ruling.

Rick Hasen notes that this months panel may not be ideologically inclined to view their requests favorably.

That stay request will be heard by a motions panel of the Ninth Circuit, which is made up this month of Judges Leavy, Hawkins, and Thomas. Not a great draw for Prop. 8 supporters.

If unable to convince the panel, they can appeal to Justice Kennedy.

The stay is denied, but extended one week to allow for appeal

From the LA Times

A federal judge Thursday refused to permanently stay his ruling overturning Proposition 8’s ban of gay marriage but extended a temporary hold to give supporters time to appeal the historic ruling.

U.S. District Court Judge Vaughn R. Walker, who overturned the measure on Aug. 4, agreed to give its sponsors until Aug. 18 to appeal his ruling to the U.S. 9th Circuit Court of Appeals. No new marriages can take place until then.

This is perhaps the most appropriate response. When we get the order we will know the language, but it appears that the Judge has ruled that the defendants have no likelihood of winning at the Ninth Circuit Court of Appeals, and therefore no stay on his ruling should be held, but he also is allowing time for the Ninth Circuit to weigh in and not create a situation in which marriages occur that may be ruled invalid within days or weeks.

Should the Ninth Circuit refuse to grant a stay, then they are unlikely to consider any intermediate marriages to be invalid regardless of their ruling.

There is not yet any word as to whether the defendant-intervenors has standing to appeal the judge’s ruling.

UPDATE:

The order reads (PDF: 40 KB/11 pages)

Judge Walker also suggests that the supporters of Proposition 8 may not have standing to request a stay:

To establish that they have standing to appeal the court’s decision under Article III, Section 2 of the Constitution, proponents must show that they have “suffered an injury in fact, which is fairly traceable to the challenged action and is likely to be redressed by the relief requested.” Didrickson v United States Dept of Interior, 982 F2d 1332, 1338 (9th Cir 1992). Standing requires a showing of a concrete and particularized injury that is actual or imminent. Lujan v Defenders of Wildlife, 504 US 555, 560 (1992). If the state defendants choose not to appeal, proponents may have difficulty demonstrating Article III standing.

The state defendants have chosen not to appeal.

The Judge’s logic is that only the state is involved with the implementation of marriage licenses. And to prove his point he relies on the decision made in 2004 to stop the City of San Francisco from issuing marriage licenses.

In Lockyer v City & County of San Francisco, the California Supreme Court explained that the regulation of marriage in California is committed to state officials, so that the mayor of San Francisco had no authority to “take any action with regard to the process of issuing marriage licenses or registering marriage certificates.” 33 Cal 4th 1055, 1080 (2004). Still less, it would appear, do private citizens possess authority regarding the issuance of marriage licenses or registration of marriages.

And if the ruling does not impact them in any way – they don’t have to issue licenses or register them or do anything they don’t want to do – then they haven’t experienced harm. And not having not “suffered an injury in fact”, they have no standing to appeal.

It appears that the earlier decision to allow the Prop 8 Supporters to intervene was based on the recognition that they had an interest in Proposition 8. But that interest may not extend to marriage law, per se. For the case to go forward, the State must appeal, or the interveners “need to show standing in the court of appeals.”

In short, being allowed to bring in your lawyers to argue the state’s case (because you think they will not do a good job) does not magically make this your case.

And this is not without precedent

The Supreme Court has expressed “grave doubts” whether initiative proponents have independent Article III standing to defend the constitutionality of the initiative. Arizonans for Official English, 520 US at 67.

Basically the judge said: you have no standing, if you are allowed to appeal you likely won’t win, you can’t argue on the behalf of the state any more – you aren’t the state and both the Governor and AG disagree with you, you aren’t harmed in any way but staying the decision would harm both gay people and the state as a whole. But I’ll give you a week to convince the Ninth Circuit otherwise.

Judge Walker Lifts Prop 8 Stay Effective August 18

We have received word that Chief U.S Federal District Judge Vaughn Walker has lifted the stay on enforcing last week’s ruling declaring California’s Prop 8 unconstitutional. Effective 5 PM PDT on August 18, California becomes the sixth state where same-sex couples enjoy the freedom to marry.

The order reads (PDF: 40 KB/11 pages):

None of the factors the court weighs in considering a motion to stay favors granting a stay. Accordingly, proponents’ motion for a stay is DENIED. Doc #705. The clerk is DIRECTED to enter judgment forthwith. That judgment shall be STAYED until August 18, 2010 at 5 PM PDT at which time defendants and all persons under their control or supervision shall cease to apply or enforce Proposition 8.

It will now be up to the Ninth Circuit Court of Appeals to decide whether to issue a stay. Given that none of the defendants have any intention of appealing, it’s unlikely the Appeals Court will intervene. The Alliance Defense Fund, which intervened to defend Prop 8, is not a named defendant and it is unclear that ADF would have any standing either to ask for a stay or seek an appeal.

UPDATE: We have two threads on this order. Please continue conversation on the other thread.

Judge To Rule On Prop 8 Stay Today

When U.S. District Judge Vaughn Walker released his ruling striking down California’s Proposition 8 as unconstitutional, he also imposed a temporary stay blocking immediate implementation of his decision. Judge Walker is expected to rule today, sometime between 9:00 a.m. and noon PST on whether he will life the stay or hold it in place pending appeals.

Two defendants of in Perry v. Schwarzenegger, the state Attorney General and Governor Arnold Schwarzenegger, have already announced that they will oppose the stay and will not appeal the case. The Board of Supervisors for Imperial County, which had attempted to intervene when the original defendants declined to defend the case, voted on Tuesday to appeal the ruling. It is doubtful that they will have standing to appeal. It is also questionable as to whether the Alliance Defense Fund, which ultimately did intervene to defend Prop 8, has standing to intervene either. If that’s the case, then the ruling would apply only to the state of California and would not go to the Ninth Circuit Court of Appeals or the U.S. Supreme Court.

Glenn Beck — Yes, That Glenn Beck — Says Marriage Equality Not A Threat

As more evidence that many social conservatives have found other groups more attractive as wedge issues, Fox News’ Glenn Beck told Bill O’Reilly yesterday that same-sex marriage is not a threat to the country:

Honestly, I think we have bigger fish to fry. You can argue about abortion or gay marriage or whatever all you want. The country is burning down…I don’t think marriage, that the government actually has anything to do with…that is a religious right…I believe that Thomas Jefferson said, “If it neither breaks my leg nor picks my pocket, what difference is it to me?”

But not everyone has moved on. Reps. Lamar Smith (R-TX), Steve King (R-IA), Michele Bachmann (R-MN) and John Fleming (R-LA) introduced a resolution in the House of representatives condemning Judge Vaughn Walker of failing “to conduct himself in an impartial manner before striking down California’s popularly enacted Proposition 8.”

Update: Last year, Glenn Beck had a very different view of same-sex marriage:

Maggie finds Judge Walker’s orientation relevant, not necessarily relevant, could be relevant, not totally irrelevant

When Maggie Gallagher is around her buddies it’s easy to just say that Judge Walker is gay and everyone knows what that means. When you all share the same opinion that gay people and gay relationships are inferior and when you all think of gay people as “the other side” then you don’t need to explain yourself.

Oh, but listen to her try to explain that comment to Tour Tracker’s Arisha Hatch

She also seems to have read a ruling other than the one released by Judge Walker. Nothing new, nothing non-Maggie.

But then she said: “The way to get a totally neutral status is to just get the government out of the marriage business” before immediately reverting to her talking points.

What’s this? Is this Maggie’s next approach? “If we have to be equal then no one should get married!!”