A California federal district court today rejected a motion for a stay pending completion of an appeal of the court's order enjoining enforcement of California's Proposition 8 banning same-sex marriage. (See
prior posting.) However the district court did grant a stay until 5:00 p.m. August 18 to permit an appeal on the issue of a stay to the 9th Circuit. In
Perry v. Schwarzenegger, (ND CA, Aug. 12, 2010), the district court concluded that none of four factors normally considered in granting a stay weigh in favor of proponents. Those factors are:
(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.
The city and county of San Francisco, California's governor and its attorney general all opposed a stay. Only the intervenors, who organized the campaign in support of Proposition 8, favored a stay. Focusing on the likelihood of success, Judge Vaughn Walker wrote:
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.... If, however, no state defendant appeals, proponents will need to show standing in the court of appeals.... Proponents’ intervention in the district court does not provide them with standing to appeal.... 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 [v. Arizona], 520 US at 67.
The
Los Angeles Times reports on the decision and says that the Proponents will appeal immediately to the 9th Circuit.
