Friday, August 13, 2010

Officious intermeddlers extraordinaire

Now this is funny. After spending 138 pages telling the intervenors in Perry v. Schwarzenegger case over the constitutionality of California's Proposition 8 that it really is none of their damn business if gay people marry each other, Judge Walker drove the point home in his order that gave only a very short stay pending appeal.

Recall, if you will, that the State of California officials named in the suit didn't defend it. The defense was mounted by the intervenors, a group of "official" proponents of Proposition 8, who sought a decision that held that the State officials were bound to enforce the law and prohibit marriage between same-sex couples. These proponents have now sought a stay of the decision during the appeal process. Like they did in trial, it is expected that the State defendants will sit back and not participate in the efforts to uphold Proposition 8. This leaves only the intervenors as potential appellants.

But there's a problem with the appeal being prosecuted by the intervenors. Judge Walker openly questions whether they even have standing to appeal the decision:
Proponents argue that irreparable harm will result if a stay is not issued because “a state suffers irreparable injury whenever an enactment of its people * * * is enjoined.” ... Proponents, of course, are not the state. Proponents also point to harm resulting from “a cloud of uncertainty” surrounding the validity of marriages performed after judgment is entered but before proponents’ appeal is resolved. Doc #705 at 10. Proponents have not, however, alleged that any of them seek to wed a same-sex spouse. Proponents admit that the harms they identify would be inflicted on “affected couples and * * * the State.” Id. Under the second factor the court considers only whether the party seeking a stay faces harm, yet proponents do not identify a harm to them that would result from denial of their motion to stay. (Bold emphasis added)
In other words, Judge Walker let these busybodies intervene at the trial, but they now have to show that they have some real, tangible interest beyond their own prejudices that would enable them to not only seek a stay, but to even proceed with an appeal.

They haven't come up with one yet, so it seems doubtful they can do so at this stage.

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