UPDATED: Prop 8 Judge: Same-Sex Weddings Can Resume ... on Wednesday

UPDATE: The dean of the UCI Law School does not see grounds for an appeal of the stay against gay weddings in California (see below) . . .

U.S. District Court Chief Judge Vaughn R. Walker in San Francisco today lifted the stay on same-sex marriages in California--beginning at 5 p.m. Wednesday.

While Prop 8 backers can still file for an immediate appeal to again try to stop gay weddings, UC Irvine School of Law Dean Erwin Chemerinsky says that may be problematic.

Just interviewed on KPCC, Chemerinsky said the original Prop 8 injunction was against California Gov. Arnold Schwarzenegger and Attorney General Jerry Brown.

All of Walker's subsequent rulings have been directed at the two state officials, not the supporters of Proposition 8, the November 2008 voter initiative that outlawed same-sex marriages.

Walker ruled last week that Prop 8 violated federal constitutional guarantees of equal protection and due process. While the judge also granted a request by Prop 8 sponsors for a temporary stay of his ruling, that stay applied to the state officials, according to Chemerinsky.

Since Schwarzenegger and Brown have filed court documents to resume gay weddings, they obviously won't be seeking an appeal of the stay, Chemerinsky noted.

Thus, Prop 8 supporters would have no standing to file an appeal with the Ninth Circuit Court of Appeals, the next court up the legal chain from Walker's. Constitutional law supports this view, according to Chemerinsky.

A three-judge panel of appellate justices that responds to motions could react in some way to a filing by Prop 8 backers, but they would be under no obligation to do so by 5 p.m. Wednesday, noted Chemerinsky, who believes the panel will come out with something by that time.

The law dean does not believe that something will be to the liking of Prop 8 supporters, however.

Meanwhile, the same appeals court would not be prepared to hear the Prop 8 case for about a year, predicts Chemerinsky.

Marriage equality foes could turn to U.S. Supreme Court Justice Anthony Kennedy, who oversees that court, to reinstate the stay. But, again, Chemerinsky suspects Prop 8 backers would have the legal standing to do so--at least not with this particular case.

Another overarching problem, the dean said, concerns harm: Prop 8 supporters have not proven anyone was harmed when 18,000 same-sex couples wed before the initiative went into effect. The state managed to adjust, as Walker noted in his ruling. Proving the opposite in future courts will be a tough challenge, Chemerinsky said.

So, when can gay weddings resume here?

The Orange County Clerk-Recorder's office reports it will not issue wedding licenses until so directed by the governor.

That, of course, may be a slam dunk since Arnold has said let the most fabulous weddings in the state go on .


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