A reader sent me an email correcting my statement that Judge Walker has "issued a stay pending appeal to the 9th Circuit." The reader is correct. Judge Walker has actually issued a temporary stay while he decides whether or not to grant a permanent stay. A "stay" is an order from the judge delaying implementation of a ruling. In this case, a "stay" means that homosexuals cannot get married in California until the stay is lifted.
While the reader's correction may seem overly technical, it actually is a big difference from my initial incorrect statement. The 9th Circuit likely will take a long time to hear the case on appeal (first in a 3 judge panel, then most likely on a second appeal in an 11 judge "en banc" panel), and throughout that period Judge Walker's ruling would remain on hold if the stay were extended until all appeals were resolved.
There is still a chance Judge Walker could grant a longer stay pending appeal, but that is looking increasingly unlikely due to some very interesting developments in California. Perry v. Schwarzenegger is an interesting case, in that Gov. Schwarzenegger who (together with California's Attorney General) represents the state by proxy in its legal battles, decided not to contest the Prop 8 lawsuit. The court permitted a third party entity called "Yes on 8" to intervene on the state's behalf in fighting the lawsuit. Now that California (as represented by "Yes on 8") lost at the trial court level, Governor Schwarzenegger is again declining to contest the lawsuit (but this time at the appeals level). In an unusual move, the Governor also asked Judge Walker to lift the temporary stay which would require California to permit homosexual marriage immediately.
Yes on 8 continues to push for an extended stay pending appeal, and is preparing for an appeal of Judge Walker's decision, but the challengers of Prop 8 are arguing that Yes on 8 has no legal "standing" to pursue an appeal. "Standing" is a somewhat complicated legal term, but in this instance it means that Yes on 8 may participate in an appeal only if they can demonstrate that they have been particularly harmed by the Prop 8 ruling (more than Californians in general) and that they have a direct stake in the outcome of the case. That standard may prove too difficult for Yes on 8 to satisfy, resulting in a win by default for the Prop 8 challengers which cannot be appealed unless Governor Schwarzenegger changes his mind and files an appeal on behalf of California within the required filing period.
Judge Walker's decision on whether to extend his stay is expected this week, but it seems unlikely he will extend the stay when none of the actual parties to the case support such an extension.
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