As expected, has filed an emergency stay of Judge Vaughn Walker’s ruling in the Prop 8 trial with the Ninth Circuit Court of Appeals. The stay that Walker put on his ruling will expire on August 18 absent any action from the Ninth Circuit. A copy of the Emergency Motion for Stay Pending Appeal is here.

Brian Devine notes the argument has made for “irreparable harm” coming to them if same-sex couples are allowed to marry in the next week:

It is thus imperative that a stay pending appeal be entered on or before August 18, 2010 at 5 p.m. to avoid the confusion and irreparable injury that would flow from the creation of a class of purported same-sex marriages. See, e.g., Advisory: If Judge Walker Says It’s OK to Get Married,, Aug. 11, 2010, available at’s-ok-to-get-married/ (reporting that West Hollywood stands ready to marry gay couples “[a]s soon as the federal judge lifts the stay,” and that Los Angeles County “is prepared to take immediate action to implement the court’s orders if the stay is lifted”) quotation marks omitted).

This statement neglects the fact that there is ALREADY a class of same-sex marriages in California. There has been throughout the whole trial. The 18,000 same-sex couples who married between May and November 2008 are still legally married. It’s hard to figure what irreparable harm that has done.

Walker, who denied the stay motion to yesterday, doubted that the intervenors even had standing to appeal his ruling, even while they were allowed to argue the case in court.

Although he allowed the coalition of religious and conservative groups that sponsored the measure to defend the lawsuit during the 13-day trial over which he presided, the judge said appellate courts have different rules for deciding when a party is eligible to challenge a lower court.

Based on his interpretation of those rules, it appears the ban’s sponsors can only appeal his decision with the backing of either Gov. Arnold Schwarzenegger or Attorney General Jerry Brown, Walker said. But that seems unlikely as both officials refused to defend Proposition 8 in Walker’s court and said last week they see no reason why gay couples should not be able to tie the knot now. is using a separate argument, saying that the courts have found that sponsors of a ballot initiative have standing to defend that initiative in a legal appeal. That argument has a better chance of succeeding.

National anti-gay groups may not contest the lack of standing too vigorously. If nobody can challenge the case in California, the legal arguments cannot spread to the Supreme Court, where a precedent-setting case would potentially make same-sex marriage legal nationwide. But California, with 1 in 9 of the nation’s citizens, is a big chip for them to lose. And clearly, the forces behind Prop 8 at the state level will fight this tooth and nail.

Even if the Ninth Circuit chooses not to deal with the stay and denies standing, the intervenors could appeal to the Supreme Court.