Judge Walker's full Decision on Prop 8

Judge Walkers decision is right here.  I loved reading it and I am sure many of you will too.  It appears those opposed to same-sex marriage couldn't expalin or failed to, the harm to them if a stay were issued. 

Oh how I love it when those folks get a taste of their own medicine...

here is the decision link. and below is the full decision

ARNOLD SCHWARZENEGGER, in his official capacity as Governor ofCalifornia; EDMUND G BROWN JR, inhis official capacity as AttorneyGeneral of California; MARK BHORTON, in his official capacity
as Director of the CaliforniaDepartment of Public Health andState Registrar of VitalStatistics; LINETTE SCOTT, in herofficial capacity as DeputyDirector of Health Information &Strategic Planning for the
California Department of PublicHealth; PATRICK O’CONNELL, in his official capacity as Clerk-
Recorder of the County of Alameda; and DEAN C LOGAN, in his official capacity as Registrar-
Recorder/County Clerk for the County of Los Angeles,
RENEWAL, as official proponents
of Proposition 8,
No C 09-2292 VRW
United States District Court
For the Northern District of California

Defendant-intervenors Dennis Hollingsworth, Gail Knight,
Martin Gutierrez, Mark Jansson and ProtectMarriage.com
(“proponents”) move to stay the court’s judgment to ensure that
Proposition 8 remains in effect as they pursue their appeal in the
Ninth Circuit. Doc #705. In the alternative, proponents seek a
brief stay to allow the court of appeals to consider the matter.
Plaintiffs and plaintiff-intervenor City and County of
San Francisco ask the court to deny the stay and order the
injunction against Proposition 8 to take effect immediately. Doc
#718. California’s Governor and Attorney General (collectively the
“state defendants”) also oppose any stay. Doc ##716, 717. Other
than proponents, no party seeks to stay the effect of a permanent
injunction against Proposition 8. Because proponents fail to
satisfy any of the factors necessary to warrant a stay, the court
denies a stay except for a limited time solely in order to permit
the court of appeals to consider the issue in an orderly manner.
“A stay is not a matter of right, even if irreparableinjury might otherwise result.” Nken v Holder, 556 US ----, 129 SCt 1749, 1761 (2009) (internal quotations omitted). Rather, the decision to grant or deny a stay is committed to the trial court’s sound discretion. Id. To trigger exercise of that discretion, the moving party must demonstrate that the circumstances justify a stay. Id.
United States District Court For the Northern District of California

In deciding whether a stay is appropriate, the court
looks to four factors:
(1) whether proponents have made a strong showing that they are likely to succeed on the merits;
(2) whether proponents will be irreparably injured absent a stay;
(3) whether the stay will substantially injure other interested parties; and
(4) whether the stay is in the public interest.

Id (internal quotations omitted) (noting overlap with Winter v
Natural Resources Defense Council, Inc, 555 US ----, 129 SCt 365,
374 (2008)). The first two factors “are the most critical.” Nken,
129 SCt at 1757. The court addresses each factor in turn.
The court first considers whether proponents have shown a
likelihood of success on the merits of their appeal. The mere
possibility of success will not suffice; proponents must show that
success is likely. Winter, 129 SCt at 375. Proponents assert they
are likely to succeed “[f]or all the reasons explained throughout
this litigation.” Doc #705 at 7. Because proponents filed their
motion to stay before the court issued its findings of fact and
conclusions of law, proponents do not in their memorandum discuss
the likelihood of their success with reference to the court’s
conclusions. Neither do proponents discuss whether the court of
appeals would have jurisdiction to reach the merits of their appeal
absent an appeal by a state defendant.
To establish that they have standing to appeal the
court’s decision under Article III, Section 2 of the Constitution,
United States District Court
For the Northern District of California

proponents must show that they have “suffered an injury in fact,
which is fairly traceable to the challenged action and is likely to
be redressed by the relief requested.” Didrickson v United States
Dept of Interior, 982 F2d 1332, 1338 (9th Cir 1992). Standing
requires a showing of a concrete and particularized injury that is
actual or imminent. Lujan v Defenders of Wildlife, 504 US 555, 560
(1992). If the state defendants choose not to appeal, proponents
may have difficulty demonstrating Article III standing. Arizonans
for Official English v Arizona, 520 US 43, 67 (1997).
As official proponents under California law, proponents
organized the successful campaign for Proposition 8. Doc #708 at
58-59 (FF 13, 15). Nevertheless, California does not grant
proponents the authority or the responsibility to enforce
Proposition 8. 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.” 33 Cal 4th 1055, 1080 (2004). Still less, it would
appear, do private citizens possess authority regarding the
issuance of marriage licenses or registration of marriages. While
the court has ordered entry of a permanent injunction against
proponents, that permanent injunction does not require proponents
to refrain from anything, as they are not (and cannot be)
responsible for the application or regulation of California
marriage law. See Cal Health & Safety Code § 102180. The court
provided proponents with an opportunity to identify a harm they
would face “if an injunction against Proposition 8 is issued.” Doc
United States District Court
For the Northern District of California

#677 at 7. Proponents replied that they have an interest in
defending Proposition 8 but failed to articulate even one specific
harm they may suffer as a consequence of the injunction. Doc #687
at 30.
When proponents moved to intervene in this action, the
court did not address their standing independent of the existing
parties. See Doc #76 at 3; see also Perry v Proposition 8 Official
Proponents, 587 F3d 947, 950 n2 (9th Cir 2009). While the court
determined that proponents had a significant protectible interest
under FRCP 24(a)(2) in defending Proposition 8, that interest may
well be “plainly insufficient to confer standing.” Diamond v
Charles, 476 US 54, 69 (1986). This court has jurisdiction over
plaintiffs’ claims against the state defendants pursuant to 28 USC
§ 1331. If, however, no state defendant appeals, proponents will
need to show standing in the court of appeals. See Arizonans for
Official English, 520 US at 67.
Proponents’ intervention in the district court does not
provide them with standing to appeal. Diamond, 476 US at 68
(holding that “Diamond’s status as an intervenor below, whether
permissive or as of right, does not confer standing to keep the
case alive in the absence of the State on this appeal”); see also
Associated Builders & Contractors v Perry, 16 F3d 688, 690 (6th Cir
1994) (“The standing requirement * * * may bar an appeal even
though a litigant had standing before the district court.”). The
Supreme Court has expressed “grave doubts” whether initiative
proponents have independent Article III standing to defend the
constitutionality of the initiative. Arizonans for Official
English, 520 US at 67.
United States District Court
For the Northern District of California

Proponents chose not to brief the standing issue in
connection with their motion to stay, and nothing in the record
shows proponents face the kind of injury required for Article III
standing. As it appears at least doubtful that proponents will be
able to proceed with their appeal without a state defendant, it
remains unclear whether the court of appeals will be able to reach
the merits of proponents’ appeal. In light of those concerns,
proponents may have little choice but to attempt to convince either
the Governor or the Attorney General to file an appeal to ensure
appellate jurisdiction. As regards the stay, however, the
uncertainty surrounding proponents’ standing weighs heavily against
the likelihood of their success.
Even if proponents were to have standing to pursue their
appeal, as the court recently explained at length the minimal
evidence proponents presented at trial does not support their
defense of Proposition 8. See Doc #708 (findings of fact and
conclusions of law). Proponents had a full opportunity to provide
evidence in support of their position and nevertheless failed to
present even one credible witness on the government interest in
Proposition 8. Doc #708 at 37-51. Based on the trial record,
which establishes that Proposition 8 violates plaintiffs’ equal
protection and due process rights, the court cannot conclude that
proponents have shown a likelihood of success on appeal. The first
factor does not favor a stay.
United States District Court
For the Northern District of California

The second factor asks whether proponents will be harmed
if enforcement of Proposition 8 were enjoined. Proponents argue
that irreparable harm will result if a stay is not issued because
“a state suffers irreparable injury whenever an enactment of its
people * * * is enjoined.” Doc #705 at 9-10 (citing Coalition for
Economic Equity v Wilson, 122 F3d 718, 719 (9th Cir 1997)).
Proponents, of course, are not the state. Proponents also point to
harm resulting from “a cloud of uncertainty” surrounding the
validity of marriages performed after judgment is entered but
before proponents’ appeal is resolved. Doc #705 at 10. Proponents
have not, however, alleged that any of them seek to wed a same-sex
spouse. Proponents admit that the harms they identify would be
inflicted on “affected couples and * * * the State.” Id. Under
the second factor the court considers only whether the party
seeking a stay faces harm, yet proponents do not identify a harm to
them that would result from denial of their motion to stay.
Both plaintiffs and the state defendants have disavowed
the harms identified by proponents. Doc #716 at 2 (Attorney
General states that any administrative burdens surrounding
marriages performed absent a stay “are outweighed by this Court’s
conclusion, based on the overwhelming evidence, that Proposition 8
is unconstitutional.”); Doc #717 at 6 (Governor opposes a stay
based on California’s strong interest in “eradicating unlawful
discrimination and its detrimental consequences.”). Plaintiffs
assert that “gay men and lesbians are more than capable of
determining whether they, as individuals who now enjoy the freedom
United States District Court
For the Northern District of California

to marry, wish to do so immediately or wait until all appeals have
run their course.” Doc #718 at 9.
Proponents do not adequately explain the basis for their
belief that marriages performed absent a stay would suffer from a
“cloud of uncertainty.” Doc #705 at 10. The court has the
authority to enjoin defendants from enforcing Proposition 8. It
appears, then, that marriages performed pursuant to a valid
injunction would be lawful, much like the 18,000 marriages
performed before the passage of Proposition 8 in November 2008.
See Strauss v Horton, 46 Cal 4th 364, 472 (2009) (holding that
married couples’ rights vest upon a lawful marriage).
If proponents had identified a harm they would face if
the stay were not granted, the court would be able consider how
much weight to give to the second factor. Because proponents make
no argument that they —— as opposed to the state defendants or
plaintiffs —— will be irreparably injured absent a stay, proponents
have not given the court any basis to exercise its discretion to
grant a stay.
The first two factors are the “most critical,” and
proponents have shown neither a likelihood of success nor the
possibility of any harm. Nken, 129 SCt at 1757. That alone
suffices for the court to conclude that a stay is inappropriate
here. Nevertheless, the court turns to the remaining two factors.
The third factor considers whether any other interested
party would be injured if the court were to enter a stay.
Plaintiffs argue a stay would cause them harm. Doc #718 at 9-10.
United States District Court
For the Northern District of California

Proposition 8 violates plaintiffs’ equal protection and due process
rights, and the court presumes harm where plaintiffs have shown a
violation of a constitutional right. Goldie's Bookstore, Inc v
Superior Court, 739 F2d 466, 472 (9th Cir 1984). But no
presumption is necessary here, as the trial record left no doubt
that Proposition 8 inflicts harm on plaintiffs and other gays and
lesbians in California. Doc #708 at 93-96 (FF 66-68). Any stay
would serve only to delay plaintiffs access to the remedy to which
they have shown they are entitled.
Proponents point to the availability of domestic
partnerships under California law as sufficient to minimize any
harm from allowing Proposition 8 to remain in effect. Doc #705 at
11. The evidence presented at trial does not support proponents’
position on domestic partnerships; instead, the evidence showed
that domestic partnership is an inadequate and discriminatory
substitute for marriage. Doc #708 at 82-85 (FF 52-54).
Proponents claim that plaintiffs’ desire to marry is not
“urgent,” because they chose not to marry in 2008. Doc #705 at 11.
Whether plaintiffs choose to exercise their right to marry now is a
matter that plaintiffs, and plaintiffs alone, have the right to
decide. Because a stay would force California to continue to
violate plaintiffs’ constitutional rights and would demonstrably
harm plaintiffs and other gays and lesbians in California, the
third factor weighs heavily against proponents’ motion.
Finally, the court looks to whether the public interest
favors a stay. Proponents argue that the public interest tips in
United States District Court
For the Northern District of California

favor of a stay because of the “uncertainty” surrounding marriages
performed before a final judicial determination of the
constitutionality of Proposition 8. Doc #705 at 11. Proponents
also point to the public interest as reflected in the votes of “the
people of California” who do not want same-sex couples to marry,
explaining that “[t]here is no basis for this Court to second-guess
the people of California’s considered judgment of the public
interest.” Id at 12.
The evidence at trial showed, however, that Proposition 8
harms the State of California. Doc #708 at 92-93 (FF 64).
Representatives of the state agree. The Governor states that
“[a]llowing the Court’s judgment to take effect serves the public
interest” in “[u]pholding the rights and liberties guaranteed by
the federal Constitution” and in “eradicating unlawful
discrimination.” Id at 5-6. Moreover, the Governor explains that
no administrative burdens flow to the state when same-sex couples
are permitted to marry. Id at 7. The Attorney General agrees that
the public interest would not be served by a stay. Doc #716 at 2.
The evidence presented at trial and the position of the
representatives of the State of California show that an injunction
against enforcement of Proposition 8 is in the public’s interest.
Accordingly, the court concludes that the public interest counsels
against entry of the stay proponents seek.
None of the factors the court weighs in considering a
motion to stay favors granting a stay. Accordingly, proponents’
motion for a stay is DENIED. Doc #705. The clerk is DIRECTED to
United States District Court
For the Northern District of California

enter judgment forthwith. That judgment shall be STAYED until
August 18, 2010 at 5 PM PDT at which time defendants and all
persons under their control or supervision shall cease to apply or
enforce Proposition 8.
United States District Chief Judge

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