Vaughn Walker, the San Francisco Federal Judge who overturned as unconstitutional California’s voter approved Proposition 8, has now agreed to lift the stay on his ruling effective August 18. Unless the opponents of same sex marriage obtain an appellate reversal of his ruling before then, the stay will be lifted on August 18, and same sex marriages may then resume.
Although some complain that Walker’s ruling is wrong to overturn the will of the voters, the will of the voters is irrelevant if a contitutional right is implicated. Just as voters cannot validly impinge on First or Second Amendment rights, they cannot overturn any constitutional protections. States may amend their constitutions only in ways that don’t interfere with federal guarantees, or increase constitutional protections beyond the federal constitution.
Accordingly, while the lay debate in the media might center on the will of the voters argument, the legal argument in the 9th Circuit and likely the Supreme Court will focus on whether the constitutional right to marry across racial boundaries, for examples, also extends to same-sex marriages.
Mediate has a good story with video here.
Updated: Here’s the pdf of the Order in Perry v. Schwarzenegger. So the legal machinations are at least somewhat clear, despite being the lead defendant on paper, California Governor Arnold Schwarzenegger supports lifting the ban on gay marriage and wants the the ceremonies to resume as soon as possible.
ExPat ExLawyer 