In The Days

• Source: SF Gate
• News Date: 8/12/10
• Author: Kevin Fagan

Gay and lesbian couples in California who were breathlessly poised to get married this morning had their hopes dashed when the federal judge who struck down the state’s ban on same-sex marriage lifted his stay on those nuptials – but simultaneously ruled that his order not take effect for six more days.

Days of Lot

“And as it was in the days of Noe, so shall it be also in the days of the Son of man. They did eat, they drank, they married wives, they were given in marriage, until the day that Noe entered into the ark, and the flood came, and destroyed them all. Likewise also as it was in the days of Lot; they did eat, they drank, they bought, they sold, they planted, they builded. But the same day that Lot went out of Sodom it rained fire and brimstone from heaven, and destroyed them all. Even thus shall it be in the day when the Son of man is revealed. ”
—Luke 17:26-30

Chief U.S. District Judge Vaughn Walker invalidated Proposition 8 last week, saying the ban was discriminatory and unconstitutional. At the time, he put a temporary stay on his ruling, meaning it could not be enforced.

He lifted that stay today, according a court announcement at 12:35 p.m. However, Walker said in today’s order that the stay will not be canceled until 5 p.m. on Aug. 18.

That gives proponents of Prop. 8 time to ask the Ninth U.S. Circuit Court of Appeals for another stay.

Couples this morning gathered at San Francisco City Hall in hopes that they could tie the knot. Despite the uncertainty of that likelihood, they wanted to be ready to take advantage of whatever opportunity they could get in the long, tangled trail of legal rulings regarding same-sex marriage.

Proponents of Prop. 8 had argued that Walker’s decision should not take effect while they seek a reversal in higher courts. That process could last a year or more; a decision by the appeals court may, in turn, be reviewed by the U.S. Supreme Court.

Lawyers for Protect Marriage, the Prop. 8 campaign committee, had said that if Walker’s ruling of last week is allowed to take effect, “same-sex marriages would be licensed under a cloud of uncertainty, and should (Protect Marriage) succeed on appeal, any such marriages would be invalid.”

Lawyers for the two couples and a gay rights organization that challenged Prop. 8 have argued that maintaining the ban through a stay would further punish gay and lesbian couples. They said that in order for the stay to remain in place, Prop. 8 opponents have to prove they are being harmed by gay and lesbian marriages, and they have to show they are likely to prevail on appeal.

“They can’t prove either of those,” said Geoff Kors, executive director of Equality California, one of the driving forces to overturn the same-sex ban. “Lifting this stay is the right thing to do.”

Prop. 8 opponents were joined in their request that the stay be lifted by Gov. Arnold Schwarzenegger and Attorney General Jerry Brown.

Douglas Napier, an attorney who defended Prop. 8, said that contrary to Kors’ contention, he is confident his side will win on appeal. After Walker’s ruling, which was the result of a nonjury trial in January, he called the setback a legal “bump in the road.”