Saying that he wants the case to proceed beyond his court quickly, Judge Vaughn Walker denied a request for a preliminary injunction against Prop 8.
Walker on Thursday rejected a request from the Boies/Olson team that he suspend enforcement of the gay marriage ban while the challenge to it proceeds.
He said he agreed with California Attorney General Jerry Brown and Gov. Arnold Schwarzenegger that allowing gay marriages to resume now would create unnecessary confusion for the state and same-sex newlyweds if Proposition 8 is upheld down the road.
But Walker added that he wants to put the case on an accelerated timetable because it involves serious civil rights issues. He directed lawyers for the two couples and the ballot measure’s sponsors to report back to him in writing by Aug. 7 with the issues they agree on up front and those that would need to be resolved at trial.
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“I am reasonably sure that, given the personalities in this courtroom, this case is only touching down in this court and it will have a life after this court,” Walker said. “What happens here is in many ways a prelude to what happens later.” (AP 7/3/09)
For the time being, there are no new marriages. This, of course, did not surprise anybody, as that particular tack seemed a long shot from day one. As for when the trial will be completed, well, when federal judges want a speedy completion to a case, they have ways of making that happen to a limited extent. However, there really is no guess as to when it will emerge from Judge Walker’s court as too many variables are at play.
Of course, Olson and Boies have intended this case for an audience of 9, but that is still a couple of years away, even with a speedy trial at the district court level. The courts should be the last refuge from the tyranny of the majority, and the fact that Prop 8 violates several provisions of the Constitution mean that it should be struck down. However, we should not rely on the courts in this instance; we are going to have to win a ballot fight at. Whether in 2010 or 2012, or whenever, a victory for marriage equality in California is only a few years away. And as California goes, so goes the nation.
Brian,
What happens if we repeal Prop 8 in 2010 and it reaches the SCOTUS shortly thereafter? Do you think they’ll hold that this is capable of repetition yet evading review? From here it sure doesn’t look like it qualifies for that (there’s an argument for voluntary cessation, but it’s not a good one), but the appeal of a favorable SCOTUS ruling is that it would make gay marriage legal nationwide (and, of course, create a clamor for a US Constitutional Amendment banning the same). Will they try to join a plaintiff from another state with a gay marriage ban to keep it from being moot?
As a legal matter, this is certainly interesting stuff, but every time I mentally count the votes I just can’t see Kennedy siding with equal marriage.
Yes, things look good for an overturn of Prop. 8 in 2010 or 2012, but I’m not convinced we should be putting all our eggs in that basket. A SCOTUS decision, if and when it comes, would be more incontrovertible and more wide-reaching than a ballot measure, and there are other issues both in nationwide and worldwide LGBT rights and in the state of California that are better investments of so much time and money. Funneling so much into the Prop. 8 fight in 2008 took scarce resources away from other states and other initiatives, and perhaps it would be wise not to repeat that.
Fights over civil rights have historically happened in the courts, not on the ballot, and I’d prefer not to leave my rights up to the California electorate again.