Thursday, August 12, 2010

Walker Digs Deeper and Deeper

Judge Walker's latest action just compounds and illustrates the arrogance of his original ruling.

Ed Whelan is all over it:

"Unbelievable: Judge Walker has denied the motion of Prop 8 proponents for a stay of his wild ruling against Prop 8 (with the exception of a stay for a limited time—until 5 p.m. on August 18—to enable proponents to seek Ninth Circuit review of the denial). In other words, he’s trying to implement same-sex marriage immediately—not only in the face of the more than seven million California citizens who voted for Prop 8 but also in an obvious effort to undermine the availability of appellate review as a meaningful corrective.

The heart of Walker’s rationale is that Prop 8 proponents may not even have standing to appeal. But if they don’t have standing to appeal, how did they have a right to intervene as defendants to present the defense of Prop 8? Why didn’t Walker simply enter a stipulated judgment (update: or more properly, as I hope to discuss more fully soon, dismiss plaintiffs’ case) when the state defendants abandoned their duty to defend Prop 8?"

Mr. Whelan also comments here.

Brian Brown from the National Organization for Marriage had this to say:

"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 whether he’s right or way off-base. Judge Walker’s ruling is more evidence that he is not a neutral referee but an activist on this issue.

He doesn’t even want his ruling — which ignores Supreme Court precedent and imposes gay marriage against the expressed wishes of the electorate — appealed to the Ninth Circuit. Walker feels that only the state politicians who were against Proposition 8 have standing to appeal, while the over 7 million California voters who supported Proposition 8 shouldn’t be able to even present their position to a higher court. It’s outrageous. The people are supposed to be sovereign, not the politicians."

Jack Smith, over at The Catholic Key:

"Federal District Judge Vaughn Walker today denied a motion to stay his ruling declaring Proposition 8 unconstitutional. His written justification for denying the motion provides ample evidence that Walker should have recused himself from the Prop 8 trial. In responding to the reasons Prop 8 proponents offered for a stay pending appeal, Walker shows himself to be merely willful and more than a little cutesy.

In addressing the argument that a stay is warranted given the proponents likelihood of success on appeal, Walker, astonishingly argues that the proponents likely don’t even have standing to appeal. Walker argues, “California does not grant proponents the authority or the responsibility to enforce Proposition 8.”

And here the cute begins. He argues that only the state has that authority:

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.”

The right of citizens to defend a democratically enacted law in court is here rendered akin to Mayor Newsom’s unilateral and illegal decision to start issuing same-sex marriage permits, ie., both are illegitimate. Since only the state can regulate marriage, Walker argues, the only people with standing to challenge his ruling would be the governor or attorney general. Since neither of them are likely to do so, there is no likelihood of an appeal even progressing, Walker argues. So no stay.

This is really extraordinary – the implication being that if the people of a state pass a law that the governor doesn’t like, and a trial court (with an obviously biased judge) throws out the law, then the people have no right to appeal."

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