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Judge who overturned Prop. 8 extends temporary hold on gay marriage [Updated]

August 12, 2010 | 12:39 pm

Prop 8 opponents listens to speakers during a rally to celebrate the ruling to overturn Proposition 8 on August 4, 2010 in West Hollywood. Credit: Kevork Djansezian / Getty Images 
A federal judge Thursday refused to permanently stay his ruling overturning Proposition 8's ban of gay marriage but extended a temporary hold to give supporters time to appeal the historic ruling.

U.S. District Court Judge Vaughn R. Walker, who overturned the measure on Aug. 4, agreed to give its sponsors until Aug. 18 to appeal his ruling to the U.S. 9th Circuit Court of Appeals. Walker said that same-sex marriages may resume at that time unless a higher court blocks them.

Walker said the sponsors of Proposition 8 do not have legal standing to appeal his order because they were not directly affected by it. 

In addition, Gov. Arnold Schwarzenegger’s  and Atty. Gen. Jerry Brown, the state’s highest officials and named defendants in the case, have told Walker that his ruling declaring the measure unconstitutional should be enforced immediately.

[Updated at 12:50 p.m.: "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," Walker wrote.

"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 jurisdiction."

Walker said there was no evidence that the sponsors of Prop. 8 "face the kind of injury" required to have standing to file an appeal.

"The uncertainty surrounding proponents' standing weighs heavily against the likelihood of their success," he wrote.

The campaign for Proposition 8 said it would immediately appeal Walker's ruling.

"If the trial court’s decision is eventually reversed, refusing to stay the decision will senselessly create legal uncertainty surrounding any same-sex unions entered while the appeal is pending," the sponsors said in a prepared statement. They did not address Walker's contention that they may not having standing to appeal.

In front of San Francisco City Hall shortly before Walker's ruling was released, a phalanx of Prop. 8 supporters wearing yellow plastic ProtectMarriage vests held their ground in front of dozens of jubilant same-sex marriage backers.

"A Moral Wrong Cannot Be a Civil Right," said one protester's sign. Another proclaimed "Pervert Judge, Pervert Ruling." Others yet called for an end to "Judicial Tyranny."

But in this gay rights bastion, the weight of public opinion became clear when an open-air, double-decker tourist bus passed. Cameras snapped as same-sex couples festooned with marriage equality stickers hooted and waved.]

Walker’s decision came after supporters of the marriage ban warned they would take their case to the U.S. Supreme Court if necessary to ensure that Walker’s ruling did not take effect.

The high court already has slapped down Walker once in the case. Lawyers for Proposition 8 appealed a pretrial decision to permit some broadcast of the trial proceedings, and the high court overturned Walker’s decision on a 5-4 vote.

Gov. Schwarzenegger and state Atty. Gen. Brown had urged Walker to permit same-sex marriages to resume, arguing the state was well-equipped to handle them.

An estimated 18,000 same-sex couples married during the six months it was legal in California in 2008, and the California Supreme Court later ruled that those marriages would remain valid.

The sponsors of the anti-gay marriage initiative told Walker that gay nuptials now would be clouded by uncertainty. The challengers countered that gay men and lesbians were capable of deciding for themselves whether to marry now or wait until the appeals conclude.

In weighing whether to put a ruling on hold, judges consider the likelihood that higher courts would uphold their ruling  and whether irreparable harm would be caused by a postponement.

Walker, who heard 13 days of testimony in January, said in his ruling Wednesday that Proposition 8 violated federal constitutional guarantees of equal protection and due process. He ruled that moral disapproval was not enough to deny gays what courts have determined is a fundamental right to marry.

Walker’s ruling will be reviewed by the U.S.9th Circuit Court of Appeals, which has a majority of Democratic appointees. If the 9th Circuit upholds Walker’s decision, opponents of same-sex marriage said they would take the case to the more conservative U.S. Supreme Court, which has the final word on matters of federal constitutional law.

--Maura Dolan and Lee Romney in San Francisco

Interactive: Gay marriage timeline | Prop. 8 donor database

Photo: Prop. 8 opponents listen to speakers during a rally celebrating the ruling to overturn the proposition on Aug. 4 in West Hollywood. Credit: Kevork Djansezian / Getty Images