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‘Judicial arrogance’: Prop 8 judge lifts stay

SAN FRANCISCO (BP)–The federal judge who struck down California Prop 8 lifted the temporary stay on his ruling Thursday and said same-sex couples could begin “marrying” Aug. 18, although supporters of the initiative planned to file a quick appeal that could make its way to the U.S. Supreme Court within days.

The decision by U.S. District Judge Vaughn Walker — unusual when compared to recent marriage cases — came eight days after he issued his landmark ruling striking down California’s constitutional amendment protecting the traditional definition of marriage. Walker temporarily stayed that Aug. 4 ruling to prevent it from going into effect, and supporters filed a motion asking that the stay be made permanent. But California Gov. Arnold Schwarzenegger and Attorney General Jerry Brown asked Walker to lift the stay, which he agreed to do.

In an 11-page ruling Thursday, Walker said Prop 8 supporters had failed to “identify a harm to them that would result from denial of their motion to stay.”

“Gay marriages” can begin at 5 p.m. PDT Aug. 18, Walker said. Supporters of Prop 8 vowed to appeal his latest ruling to the U.S. Ninth Circuit Court of Appeals. If that court fails to reinstate the stay, an appeal to the U.S. Supreme Court is likely. The appeals could give the nation a preview of how the nation’s highest court might rule on the merits of the case if it eventually takes it up.

The case, Perry v. Schwarzenegger, is perhaps the most significant “gay marriage” case in the nation’s history and could result in the striking of laws and constitutional amendments in all 45 states defining marriage as between one man and one woman.

“This is just one more example of the judicial arrogance of this particular judge,” said Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission. “One hopes the Ninth Circuit Court of the Appeals or the Supreme Court will rectify this reckless decision and put a stay in place until after the people have had a chance to have the case adjudicated by the proper courts.”

Prop 8 passed, 52-48 percent, in 2008. It had been placed on the ballot after supporters gathered approximately 1.1 million signatures.

Walker’s latest ruling is unusual, at least when compared to other “gay marriage” cases. For instance, lower courts in Maryland and New York in recent years issued pro-“gay marriage” rulings but stayed their decisions until higher courts could consider them. In both instances, the rulings were overturned. When a federal judge struck down Nebraska’s marriage amendment several years back — a ruling that did not go as far as did Walker’s — it was stayed and eventually overturned by the Eighth Circuit.

“We will promptly seek from the Ninth Circuit Court of Appeals a stay pending the final resolution of the case,” Charles J. Cooper, lead counsel for ProtectMarriage.com, the official supporters of Prop 8, said in a statement. “On appeal, we look forward with confidence to a decision vindicating the democratic process and the basic constitutional authority of the 7 million Californians who voted to retain the traditional definition of marriage. 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.”

Said Brian Brown, president of the National Organization for Marriage and another pro-Prop 8 group, “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.”

Jennifer C. Pizer, national marriage project director for Lambda Legal, a homosexual group that opposes Prop 8, said her organization was disappointed with the delay until Aug. 18 but overall pleased with Walker’s ruling.

“To maintain the stay, the Ninth Circuit will have to find that Prop 8’s proponents are likely to win on appeal or will suffer irreparable harm if same-sex couples again are allowed to marry,” she said in a statement. “But at this point, the truth is crystal clear, as last week’s decision explains: the only people suffering harm are lesbian and gay couples whose constitutional rights are violated every day that Prop 8 remains in force, and who simply seek the same rights everyone else already enjoys.”

Conservatives warn that religious liberty will suffer if “gay marriage” is legalized nationwide.

In New Mexico last year, a state judge ruled that a husband-and wife-owned photography company violated state anti-discrimination laws when they refused to take pictures of a lesbian commitment ceremony. In New Jersey, a Methodist-owned beachfront property lost part of its tax-exempt status because its leaders denied use of the property to a lesbian couple for a commitment ceremony. States with “gay marriage” also have seen controversies over what is taught in public schools.
Michael Foust is an assistant editor of Baptist Press. Read a Q&A about the case at http://www.bpnews.net/bpnews.asp?id=33464.

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  • Michael Foust