The federal judge who struck down California’s ban on same-sex marriages last week refused on Thursday to postpone his decision, but did rule that it would not take effect until the Ninth Circuit Court has a chance to “consider the issue in an orderly manner.”  The order can be found here.  U.S. District Judge Vaughn R. Walker specified, however, that his ruling would take effect in six days.

The judge raised the possibility that the backers of Proposition 8 — the ban approved by the state’s voters in 2008 — may not have a legal right to appeal his decision, since state officials have declined to defend the ban and seem unlikely to pursue their own appeal.  The judge declared: “If the state [officials] choose not to appeal, proponents may have difficulty demonstrating Article III standing” — that is, the legal right under the Constituton to be in court.

Backers of the ban are expected to move quickly to ask the Ninth Circuit to delay Waller’s decision while they pursue an already-filed appeal (Circuit docket 10-16696).   If the Circuit Court refuses to  do so, they are likely to then make an attempt to persuade the Supreme Court to stay the ruling.  Such a request for a postponement would go first to Justice Anthony M. Kennedy, the Circuit Justice for that part of the country.

Judge Walker’s comments about the possible lack of an appeal right for Proposition 8′s supporters posed an issue that the Circuit Court presumably will have to confront before it proceeds with any review of the historic decision to allow same-sex couples in the nation’s largest state to get married. The judge noted pointedly that, in allowing the ballot measure’s supporters to join in the trial of the ban’s constitutionality, he had never formally ruled that they had “standing.” 

He recalled that he had concluded that the supporters had “a protectible interest…in defending Proposition 8,” but he said that that alone would not be enough to give them standing, and would not provide a basis for a right to appeal — especially if state officials decline to press the case in the Circuit Court.  All key state officials had told Judge Walker last week that they opposed any delay of his ruling, and said they were prepared to move ahead with issuing marriage licenses to gay couples.  Gov. Arnold Schwarzenegger and other officials said last week that the state had a strong interest in “eradciating unlawful discrimination and its detrimental consequences” for gay persons.

Under California law, the judge said, supporters of ballot measures do not have the authority or duty to enforce a provision like Proposition 8.  The state Supreme Court has  ruled, he added, that local officials do not have any authority to deal with the legal issue of marriage, since that is a state responsibility.  “Still less, it would appear, do private citizens possess authority regarding the issuance of marriage licenses or registration of marriages,” Walker wrote.

The judge said he had offered Proposition 8′s backers a chance to spell out a harm that they would directly suffer if their measure were struck down, and the only reply was that they were interested in defending the measure.  They failed, he said, “to articulate even one specific harm they may suffer as a consequence” of his order barring enforcement of the marriage ban.