The question for the last week has been: Which Judge Walker would emerge with the decision on whether same-sex marriages could go forth immediately? Would it be the cautious one who, slapped down by the U.S. Supreme Court over cameras in the courtroom, decided not to allow them during the closing arguments on Proposition 8? Or the one who overturned the ban on same-sex marriage with a historic and elegantly written opinion?
The answer was both.
Having ruled last week that Proposition 8 was unconstitutionally discriminatory, U.S. District Chief Judge Vaughn R. Walker would have been hard-pressed to decide this week that the resumption of same-sex weddings in California should be delayed until the case wends its way through the appeals process. Once he concluded, properly, that such marriages represented the fulfillment of a constitutionally guaranteed right, there was no compelling basis for saying that gay and lesbian couples should have to wait before exercising that right. As Walker wrote, such weddings would not harm children or the institution of marriage, and were a simple matter for the government to resume. He reiterated that opinion in his Thursday ruling, expressing confidence that it would withstand the scrutiny of higher courts.
Walker made the logical and ethical decision to lift his temporary stay on last week’s ruling, but prudently decreed that it would remain in place until Wednesday, giving supporters of Proposition 8 time to bring the issue to the U.S. 9th Circuit Court of Appeals. That might not have been the boldest decision, but it was a fair and judicious one. If the weddings had begun Thursday afternoon — officials in several cities throughout the state, including Mayor Antonio Villaraigosa in Los Angeles, were set up to start officiating at high-profile nuptials — and then were stopped just a few days later by a higher court, that truly would have created whipsawing confusion.
Thursday’s decision should, but probably won’t, quell some of the undeserved criticism leveled at Walker, who has been shrilly accused of engaging in self-interested “judicial tyranny.” To the contrary: Walker stood firm on constitutional principle yet showed respect for the litigants as they take their case to a higher court.
We hope the appeals court allows the stay to end next Wednesday. Though Walker’s ruling Thursday was a reasonable solution to an urgent legal situation, there is no good reason to ban same-sex marriage unless and until a higher court considers the broader question. That process could take months or even years. Until then, let them be wed.