The positioning around Judge Walker’s over-turning of Prop 8 is making for high drama indeed!
Arnold Schwarzenegger and Jerry Brown have both asked that gay marriages resume immediately, as Judge Walker originally ruled (but then paused over). This is in addition to both of them refusing to defend Prop 8 in the original court case, even though nominally they must defend the Californian constitution. (There is a lesson for Obama in that – he could just refuse to defend the Defense of Marriage Act [DOMA] in court to if his administration so chose).
So … all the appeals have now started but guess what … they can’t go anywhere. Why? Because on my understanding – if Brown and Schwarzenegger (or their successors after November’s elections) refuse to defend Prop 8 in court then the Supreme Court will refuse to hear the case (because there will only be one side in the case). Equality haters can’t randomly appeal to the high court if both the plaintiffs (gay couples) and the defendants (the state of California) agree there is no case.
So be patient – we are going to win this in the end.
Jerry Brown’s actual submission to the Court is below, with thanks to Rex Wockner for passing it on:
The Attorney General opposes Defendant-Intervenors’ Request for a Stay of this Court’s August 4, 2010 Order permanently enjoining the application or enforcement of Proposition 8 pending appeal of that Order. As the Attorney General has consistently stated and as was convincingly demonstrated at trial, Proposition 8 violates the Fourteenth Amendment of the United States Constitution. Defendant-Intervenors thus cannot demonstrate a likelihood of success on the merits in their appeal of this Court’s Order. Moreover, as this Court has concluded that Proposition 8 is unconstitutional, the public interest weighs against its continued enforcement.
Defendant-Intervenors’ argument that the Attorney General’s opposition to Plaintiffs’ initial request for a preliminary injunction supports their request for a stay pending appeal ignores the fact that there has now been a trial on the merits that conclusively demonstrated that
Proposition 8 is unconstitutional. In opposing the request for a preliminary injunction, the Attorney General argued that “the parties, the Court, and, indeed, the general public would benefit” from having the constitutionality of Proposition 8 “decided on the merits following full briefing and argument by the parties.” (Attorney General’s Opposition to Plaintiffs’ Motion for Preliminary Injunction at 11-12.) That has now occurred. And while there is still the potential for limited administrative burdens should future marriages of same-sex couples be later declared invalid, these potential burdens are outweighed by this Court’s conclusion, based on the overwhelming evidence, that Proposition 8 is unconstitutional. Accordingly, the harm to the plaintiffs outweighs any harm to the state defendants.
There is now a final determination that Proposition 8 is unconstitutional. Each of the four factors this Court must consider in determining whether a stay is warranted weigh against a stay. See Golden Gate Rest. Ass’n v. San Francisco, 512 F.3d 1112, 115 (9th Cir. 2008). Accordingly, the Attorney General respectfully requests that Defendant-Intervenors’ request for a stay pending appeal be denied.
Dated: August 6, 2010
Respectfully submitted,
EDMUND G. BROWN JR.
Attorney General of California
JONATHAN K. RENNER
Senior Assistant Attorney General
GORDON BURNS
Deputy Solicitor General
TAMAR PACHTER
Deputy Attorney General
__/s/_Daniel J. Powell____
DANIEL J. POWELL
Deputy Attorney General
Attorneys for Attorney General Edmund G. Brown Jr.
Tags: Arnold Schwarzenegger gay marriage, california constitution gay marriage, gay marriage, Jerry Brown gay marriage, marriage equality, Prop 8, prop 8 appeal, same sex marriage
