links for 2010-08-05

Supporters of California's gay marriage ban filed an appeal Thursday of a federal judge's ruling striking down the voter-approved law.

The appeal to the 9th U.S. Circuit Court of Appeals was expected, as lawyers on both sides of the legal battle repeatedly vowed to carry the fight to a higher court if they lost.

On Wednesday, a federal judge in San Francisco overturned California's Proposition 8, which restricts a marriage to one man and one woman. U.S. District Court Judge Vaughn Walker ruled the law violates federal equal protections and due process laws.

The 9th Circuit court has no deadlines to hear the case, which will be randomly assigned to a three-judge panel. It's expected that the panel will order both sides to submit written legal arguments before scheduling a hearing.
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Will the decision be stayed pending appeal or will there be a flood of new gay marriages?

I’m still studying the decision today in Perry v. Schwarzenegger, which strikes down Prop 8 on both due process and equal protection grounds. I like a lot of the language, and the arguments, as a matter of rhetoric, common sense, and policy. There are some interesting twists on familiar arguments and, overall, the opinion is a pretty good compendium of a policy brief for SSM.

But my concerns about this decision outweigh what I see as its merits. In reading so far, I think a notable feature of Judge Walker’s decision is its judicial maximalism — a willingness to reach out and decide fundamental constitutional questions not strictly necessary to reach the result. It is also, in maximalist style, filled with broad pronouncements about the essential characteristics of marriage and confident conclusions about social science. This maximalism will make the decision an even bigger target for either the Ninth Circuit or the Supreme Court.
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It will come down to Justice Kennedy

Proponents of Proposition 8 will undoubtedly seek to appeal Judge Walker’s decision, first to the Ninth Circuit Court of Appeals and then, ultimately, to the Supreme Court of the United States (although, quite frankly, there is lurking in the opinion a potential landmine on that score; because none of the government defendants defended Proposition 8, and because Attorney General Jerry Brown actively argued for it to be ruled unconstitutional, there is some question whether the non-governmental proponents will even have the right to file an appeal on their own, and Judge Walker denied a long-lingering motion to intervene by Imperial County, the one governmental entity that actually sought to defend Proposition 8).
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If SCOTUS does not grant standing and overrule – hello polygamy and litigation for decades