By Peter J. Smith

Updated 5:09pm EST

SAN FRANCISCO, August 12, 2010 ( – A federal judge says he will lift the stay he imposed on his ruling striking down Proposition 8, California’s constitutional amendment defining marriage as the union of a man and a woman.

U.S. District Chief Judge Vaughn Walker in San Francisco issued his decision Thursday, just five minutes past his self-imposed deadline of 12 P.M. PST, rejecting arguments by attorneys defending Prop.8 that the stay should remain in place until a final decision was issued in the appeals process.

The judge’s order will allow same-sex couples to acquire marriage licenses beginning August 18 at 5 p.m.

Walker, one of three known openly homosexual judges in the federal judiciary, struck down Prop. 8 in his ruling on the Perry v. Schwarzenegger case last week. Walker declared that the ban on same-sex “marriage” violated the equal protection and due process clauses of the 14th Amendment to the U.S. Constitution.

The constitutional amendment states: “Only marriage between a man and a woman is valid or recognized in California.”

Walker said that considering marriage to be only between a man and a woman had no “rational basis” and concluded: “the evidence shows Proposition 8 does nothing more than enshrine in the California constitution the notion that opposite sex couples are superior to same sex couples.”

Pro-family attorneys representing defending the amendment filed an appeal last Thursday with the 9th Circuit Court of Appeals. Walker’s six-day temporary extension of the stay now gives sponsors of Prop. 8 time to ask the federal appeals court for a stay on his order.

The Perry v. Schwarzenegger case will likely go before a three-judge panel of the 9th Circuit Court, although that process could take more than a year. Any decision by the Court is expected to be appealed to the U.S. Supreme Court.

Brian Brown, President for the National Organization for Marriage, which was heavily engaged in the November 2008 passing of Prop. 8 by approximately 7 million voters, said Walker’s decision smacked of further judicial activism. 


“When a lower judge makes an unprecedented ruling that totally overturns existing Supreme Court precedent, the normal thing for that judge to do is to stay his decision, and let the higher courts decide, in an orderly fashion that respects the rule of law, if he's right or if he's way off-base,” stated Brown. 


“Judge Walker's ruling is more evidence he is not a neutral referee, he's an activist on this issue,” he continued. “This will be appealed to Justice Anthony Kennedy, and I think it is a tactical mistake on Judge Walker's part to display his injudicious zeal – once again – before Kennedy's eyes.” 


See previous coverage by

Commentary: All Eyes on Anthony Kennedy and Prop. 8

Prop. 8 Attorneys File Appeal to Defend California's Marriage Law

UPDATE: Federal Judge Rules Proposition 8 Unconstitutional 

San Francisco Chronicle: “Open Secret” That Prop. 8 Judge is “Gay”