California same-sex couples waited in county offices Thursday, poised to file marriage licenses the moment a federal judge gave them the go-ahead. But the day had an anti-climactic ending for them: U.S. District Court Judge Vaughn R. Walker said same-sex marriages could go ahead - next week.
Although it will take months to learn the final fate of the California amendment that defines marriage as between one man and one woman, Proposition 8 defenders asked that Walker bar same-sex marriages from occurring while the case is under appeal. Walker granted them a temporary stay on August 4, the day he overturned Proposition 8. On Thursday, he chose not to make the stay permanent, but the temporary stay will continue until August 18 to let amendment supporters file an appeal with the 9th U.S. Circuit Court of Appeals.
In a statement, defense attorney Charles Cooper said he was disappointed in Walker's decision to permit same-sex marriage while the case is still unresolved: "The decision whether to redefine the institution of marriage is for the people themselves to make, not a single district court judge, especially without appellate scrutiny."
The stay was partly a bet on the case's final outcome. Proposition 8 proponents had to convince Walker that the 9th Circuit would support Proposition 8 in the end, and that everyone benefits if the state does not perform same-sex marriages in the meantime. Any same-sex marriages performed before the case is over "would be licensed under a cloud of uncertainty" and become invalid if Proposition 8 prevails, they argued. Something similar happened in 2004 when San Francisco issued licenses for 4,000 same-sex couples. The marriages became void when the California Supreme Court ruled against the City of San Francisco.
The proponents looked to precedent to prove they could win the case in the end, listing a number of court cases that assumed a traditional definition of marriage and that rejected protected-class status for homosexuals.
Attorney General Jerry Brown filed a brief opposing the stay, saying that if Proposition 8 is unconstitutional as the court ruled, "the public interest weighs against its continued enforcement." Gov. Arnold Schwarzenegger (the defendant in the case, although he supports same-sex marriage) also filed a brief against the stay, saying the Proposition 8 supporters' appeal is "meritless."
Proposition 8 supporters earlier told WORLD that if Walker refused to grant a stay, they would appeal to the 9th Circuit to grant one, and then take the case to Justice Anthony Kennedy if the Appeals Court refused.