Some time between noon and 3 p.m. Eastern time today (between 9 a.m. and noon in California), Judge Walker will enter an order on the Prop 8 proponents’ request that he stay his anti-Prop 8 judgment pending appeal. (That information circulated by e-mail from the court’s public affairs office.)
It’s amazing to contemplate that Walker might have the audacity to deny the stay request and to implement immediately—unless stopped by a higher court—his wild and (as prominent supporter of same-sex marriage Jonathan Rauch puts it) “radical” ruling against Prop 8. Among other things, Walker’s ruling is contrary to the Supreme Court’s 1972 order in Baker v. Nelson, which unanimously dismissed, “for want of a substantial federal question,” the same constitutional claims that the anti-Prop 8 plaintiffs made. It’s also contrary in multiple respects to other well-established lines of authority, and it rests on leaps of illogic and sweeping factual assertions that are refuted not only by the record but by common sense.
Denying a stay pending appeal would lead to incredible confusion and chaos and could only be understood as an effort by Walker to alter the status quo in order to try to entrench his lawless ruling. (The fact that Governor Schwarzenegger and attorney general Jerry Brown, in their continued dereliction of their duty to defend Prop 8, oppose the stay request is insignificant, for California law recognizes that proponents of a proposition represent the public interest when state officials decline to defend a proposition. It’s on that very basis that Walker proceeded with the anti-Prop 8 lawsuit.)
Unthinkable as denial of a stay ought to be, Walker has already shown himself to be so devoid of sober judgment in this case that who knows what he might do.
If Walker does deny the stay and the Ninth Circuit doesn’t immediately reverse him, another slapdown by the Supreme Court—which this time ought to be unanimous—may be imminent.