Gay “marriage” is on hold for now in California, thanks to the Ninth Circuit’s stay on Judge Walker’s ruling.

vaughn_walkerIf the Ninth Circuit hadn’t granted a stay of Judge Vaughn Walker’s judgment in overturning California’s Prop 8 marriage definition amendment, California would have begun issuing same-sex marriage licenses Wednesday, despite the wishes of the voters.

Ed Whelan at National Review said, “Walker’s denial of the stay threatened to dramatically alter the status quo before a higher court could even review his radical ruling…This is the third time that a reviewing court has smacked down Walker in this case.”

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Clearly, Judge Walker is serving an agenda rather than established legal procedures making his handling of the case “egregious” according to Whelan.  “To any objective observer, Walker has discredited himself by his manifest bias,” he said.

He added, “I think it’s highly unlikely that Walker’s wild legal analysis or his crazed purported findings will advance his cause—and far more likely that they will do the opposite.“

In handing down the stay, the Ninth Circuit panel also expedited the appeal which will be calendared for the week of December 6, 2010.

Ed Whelan noted, It’s now a safe bet that any Ninth Circuit ruling in favor of the anti-Prop 8 side (on whatever grounds) would also be stayed pending Supreme Court disposition of the case.  Even with the Ninth Circuit’s expedition of briefing and oral argument, it’s highly unlikely that the Supreme Court would rule on the merits of the case before June 2012.  And, factoring in the usual delays in Ninth Circuit opinion-writing and the possibility of en banc proceedings, it’s easy to see how the Supreme Court wouldn’t rule until June 2013 or even June 2014.

Observers say that it would the issue would come to a 4-4 split at the Supreme Court, with Justice Anthony Kennedy ultimately deciding which way the Court swings.

The Question of Standing

It is disturbing, however, that in their statement, the Ninth Circuit left open the question of whether the Prop. 8 proponents have formal standing to represent the appeal in the case, since the state of California and the Attorney General Jerry Brown have to this point declined to do so.

The director of communications for the office of the attorney general told The Wall Street Journal, “We believe that Walker’s ruling should stand, and believe that gay marriage is covered by the equal protection clause of the 14th Amendment,” he said.

Two problems leap out here.  Isn’t the highest legal office of a state supposed to defend the people’s vote, rather than step aside because of their own prejudice?

Second, other courts have not read the equal protection clause in the same way.  It is hardly a given that gay marriage is covered by the 14th amendment.

In fact, Prop 8 proponents argue that Judge Walker’s ruling is contrary to the governing Supreme Court precedent in Baker v. Nelson (1972) where the Supreme Court unanimously dimissed an appeal from the Minnesota Supreme Court on the same question—whether a State’s refusal to authorize same-sex marriage violated the due Process and Equal Protection Clause.