
    Kristin M. PERRY, Sandra B. Stier, Paul T. Katami and Jeffrey J. Zarrillo, Plaintiffs, City and County of San Francisco, Plaintiff-Intervenor, v. Arnold SCHWARZENEGGER, in his official capacity as Governor of California; Edmund G. Brown Jr., in his official capacity as Attorney General of California; Mark B. Horton, in his official capacity as Director of the California Department of Public Health and State Registrar of Vital Statistics; Linette Scott, in her official capacity as Deputy Director of Health Information & Strategic Planning for the California Department of Public Health; Patrick O’Connell, in his official capacity as Clerk-Recorder of the County of Alameda; and Dean C Logan, in his official capacity as Registrar-Recorder/County Clerk for the County of Los Angeles, Defendants, Dennis Hollingsworth, Gail J. Knight, Martin F. Gutierrez, Hak-Shing William Tam, Mark A. Jansson and Protectmarriage.Com—Yes on 8, A Project of California Renewal, as official proponents of Proposition 8, Defendant-Intervenors.
    No. C 09-2292 VRW.
    United States District Court, N.D. California, Northern Division.
    Aug. 12, 2010.
    
      David Boies, Rosanne C. Baxter, Boies Schiller & Flexner LLP, Armonk, NY, Theodore B. Olson, Amir Cameron Tayrani, Christopher Dean Dusseault, Enrique Antonio Monagas, Ethan D. Dettmer, Matthew Dempsey McGill Gibson Dunn & Crutcher LLP, Washington, DC, Jeremy Michael Goldman, Theodore Hideyuki Uno, Boies, Schiller & Flexner LLP, Oakland, CA, Sarah Elizabeth Piepmeier, Gibson, Dunn & Crutcher LLP, San Francisco, CA, Theane Evangelis Kapur, Theodore J. Boutrous, Jr., Gibson, Dunn & Crutcher LLP, Los Angeles, CA, for Plaintiffs.
    Charles Salvatore Limandri, Law Offices of Charles S. Limandri, Rancho Santa Fe, CA, pro se.
    Alan Lawrence Schlosser, ACLU Foundation of Northern California, Inc., Christopher Francis Stoll, Ilona Margaret Turner, Shannon Minter, National Center for Lesbian Rights, San Francisco, CA, James Dixon Esseks, Matthew Albert Coles, ACLU Foundation, New York, NY, Jennifer Carol Pizer, Jon Warren Davidson, Tara Lynn Borelli, Lambda Legal Defense and Education Fund, Inc., Office of County Counsel- — County of Los Angeles, Los Angeles, CA, Kenneth C. Mennemeier, Andrew Walter Stroud, Mennemeier Glass-man & Stroud LLP, Gordon Bruce Burns, Attorney Generals Office, Dept, of Justice, Sacramento, CA, Daniel J. Powell, Department of Justice, Attorney General’s Office, Tamar Pachter, Office of the California Attorney General, David E. Bunim, Haas & Najarían, San Francisco, .CA, Claude Franklin Kolm, County of Alameda, Manuel Francisco Martinez, Office of the County Counsel, County of Alameda, Oakland, CA, Judy Whitehurst, for Defendants.
   VAUGHN R. WALKER, Chief Judge.

Defendant-intervenors Dennis Hollingsworth, Gail Knight, Martin Gutierrez, Mark Jansson and ProtectMarriage.com (“proponents”) move to stay the court’s judgment to ensure that Proposition 8 remains in effect as they pursue their appeal in the Ninth Circuit. Doc. # 705. In the alternative, proponents seek a brief stay to allow the court of appeals to consider the matter. Id.

Plaintiffs and plamtiff-intervenor City and County of San Francisco ask the court to deny the stay and order the injunction against Proposition 8 to take effect immediately. Doc. # 718. California’s Governor and Attorney General (collectively the “state defendants”) also oppose any stay. Doc. ## 716, 717. Other than proponents, no party seeks to stay the effect of a permanent injunction against Proposition 8. Because proponents fail to satisfy any of the factors necessary to warrant a stay, the court denies a stay except for a limited time solely in order to permit the court of appeals to consider the issue in an orderly manner.

I

“A stay is not a matter of right, even if irreparable injury might otherwise result.” Nken v. Holder, 556 U.S. -, 129 S.Ct. 1749, 1761, 173 L.Ed.2d 550 (2009) (internal quotations omitted). Rather, the decision to grant or deny a stay is committed to the trial court’s sound discretion. Id. To trigger exercise of that discretion, the moving party must demonstrate that the circumstances justify a stay. Id.

In deciding whether a stay is appropriate, the court looks to four factors:

(1) whether proponents have made a strong showing that they are likely to succeed on the merits;
(2) whether proponents will be irreparably injured absent a stay;
(3) whether the stay will substantially injure other interested parties; and
(4) whether the stay is in the public interest.

Id. (internal quotations omitted) (noting overlap with Winter v. Natural Resources Defense Council, Inc., 555 U.S. -, 129 S.Ct. 365, 374, 172 L.Ed.2d 249 (2008)). The first two factors “are the most critical.” Nken, 129 S.Ct. at 1757. The court addresses each factor in turn.

A

The court first considers whether proponents have shown a likelihood of success on the merits of their appeal. The mere possibility of success will not suffice; proponents must show that success is likely. Winter, 129 S.Ct. at 375. Proponents assert they are likely to succeed “[f]or all the reasons explained throughout this litigation.” Doc. # 705 at 7. Because proponents filed their motion to stay before the court issued its findings of fact and conclusions of law, proponents do not in their memorandum discuss the likelihood of their success with reference to the court’s conclusions. Neither do proponents discuss whether the court of appeals would have jurisdiction to reach the merits of their appeal absent an appeal by a state defendant.

To establish that they have standing to appeal the court’s decision under Article III, Section 2 of the Constitution, proponents must show that they have “suffered an injury in fact, which is fairly traceable to the challenged action and is likely to be redressed by the relief requested.” Didrickson v. United States Dept. of Interior, 982 F.2d 1332, 1338 (9th Cir.1992). Standing requires a showing of a concrete and particularized injury that is actual or imminent. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). If the state defendants choose not to appeal, proponents may have difficulty demonstrating Article III standing. Arizonans for Official English v. Arizona, 520 U.S. 43, 67, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997).

As official proponents under California law, proponents organized the successful campaign for Proposition 8. Doc. # 708 at 58-59 (FF 13, 15). Nevertheless, California does not grant proponents the authority or the responsibility to enforce Proposition 8. In Lockyer v. City & County of San Francisco, the California Supreme Court explained that the regulation of marriage in California is committed to state officials, so that the mayor of San Francisco had no authority to “take any action with regard to the process of issuing marriage licenses or registering marriage certificates.” 33 Cal.4th 1055, 1080, 17 Cal.Rptr.3d 225, 95 P.3d 459 (2004). Still less, it would appear, do private citizens possess authority regarding the issuance of marriage licenses or registration of marriages. While the court has ordered entry of a permanent injunction against proponents, that permanent injunction does not require proponents to refrain from anything, as they are not (and cannot be) responsible for the application or regulation of California marriage law. See Cal. Health & Safety Code § 102180. The court provided proponents with an opportunity to identify a harm they would face “if an injunction against Proposition 8 is issued.” Doc. # 677 at 7. Proponents replied that they have an interest in defending Proposition 8 but failed to articulate even one specific harm they may suffer as a consequence of the injunction. Doc. # 687 at 30.

When proponents moved to intervene in this action, the court did not address their standing independent of the existing parties. See Doc. # 76 at 3; see also Perry v. Proposition 8 Official Proponents, 587 F.3d 947, 950 n. 2 (9th Cir.2009). While the court determined that proponents had a significant protectible interest under FRCP 24(a)(2) in defending Proposition 8, that interest may well be “plainly insufficient to confer standing.” Diamond v. Charles, 476 U.S. 54, 69, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986). This court has jurisdiction over plaintiffs’ claims against the state defendants pursuant to 28 USC § 1331. If, however, no state defendant appeals, proponents will need to show standing in the court of appeals. See Arizonans for Official English, 520 U.S. at 67, 117 S.Ct. 1055.

Proponents’ intervention in the district court does not provide them with standing to appeal. Diamond, 476 U.S. at 68, 106 S.Ct. 1697 (holding that “Diamond’s status as an intervenor below, whether permissive or as of right, does not confer standing to keep the case alive in the absence of the State on this appeal”); see also Associated Builders & Contractors v. Perry, 16 F.3d 688, 690 (6th Cir.1994) (“The standing requirement * * * may bar an appeal even though a litigant had standing before the district court.”). The Supreme Court has expressed “grave doubts” whether initiative proponents have independent Article III standing to defend the constitutionality of the initiative. Arizonans for Official English, 520 U.S. at 67, 117 S.Ct. 1055.

Proponents chose not to brief the standing issue in connection with their motion to stay, and nothing in the record shows proponents face the kind of injury required for Article III standing. As it appears at least doubtful that proponents will be able to proceed with their appeal without a state defendant, it remains unclear whether the court of appeals will be able to reach the merits of proponents’ appeal. In light of those concerns, proponents may have little choice but to attempt to convince either the Governor or the Attorney General to file an appeal to ensure appellate jurisdiction. As regards the stay, however, the uncertainty surrounding proponents’ standing weighs heavily against the likelihood of their success.

Even if proponents were to have standing to pursue their appeal, as the court recently explained at length the minimal evidence proponents presented at trial does not support their defense of Proposition 8. See Doc. #708 (findings of fact and conclusions of law). Proponents had a full opportunity to provide evidence in support of their position and nevertheless failed to present even one credible witness on the government interest in Proposition 8. Doc. # 708 at 37-51. Based on the trial record, which establishes that Proposition 8 violates plaintiffs’ equal protection and due process rights, the court cannot conclude that proponents have shown a likelihood of success on appeal. The first factor does not favor a stay.

B

The second factor asks whether proponents will be harmed if enforcement of Proposition 8 were enjoined. Proponents argue that irreparable harm will result if a stay is not issued because “a state suffers irreparable injury whenever an enactment of its people * * * is enjoined.” Doc. # 705 at 9-10 (citing Coalition for Economic Equity v. Wilson, 122 F.3d 718, 719 (9th Cir.1997)). Proponents, of course, are not the state. Proponents also point to harm resulting from “a cloud of uncertainty” surrounding the validity of marriages performed after judgment is entered but before proponents’ appeal is resolved. Doc. #705 at 10. Proponents have not, however, alleged that any of them seek to wed a same-sex spouse. Proponents admit that the harms they identify would be inflicted on “affected couples and * * * the State.” Id. Under the second factor the court considers only whether the party seeking a stay faces harm, yet proponents do not identify a harm to them that would result from denial of their motion to stay.

Both plaintiffs and the state defendants have disavowed the harms identified by proponents. Doc. # 716 at 2 (Attorney General states that any administrative burdens surrounding marriages performed absent a stay “are outweighed by this Court’s conclusion, based on the overwhelming evidence, that Proposition 8 is unconstitutional.”); Doc. # 717 at 6 (Governor opposes a stay based on California’s strong interest in “eradicating unlawful discrimination and its detrimental consequences.”). Plaintiffs assert that “gay men and lesbians are more than capable of determining whether they, as individuals who now enjoy the freedom to marry, wish to do so immediately or wait until all appeals have run their course.” Doc. # 718 at 9.

Proponents do not adequately explain the basis for their belief that marriages performed absent a stay would suffer from a “cloud of uncertainty.” Doc. # 705 at 10. The court has the authority to enjoin defendants from enforcing Proposition 8. It appears, then, that marriages performed pursuant to a valid injunction would be lawful, much like the 18,000 marriages performed before the passage of Proposition 8 in November 2008. See Strauss v. Horton, 46 Cal.4th 364, 472, 93 Cal.Rptr.3d 591, 207 P.3d 48 (2009) (holding that married couples’ rights vest upon a lawful marriage).

If proponents had identified a harm they would face if the stay were not granted, the court would be able consider how much weight to give to the second factor. Because proponents make no argument that they — as opposed to the state defendants or plaintiffs — -will be irreparably injured absent a stay, proponents have not given the court any basis to exercise its discretion to grant a stay.

The first two factors are the “most critical,” and proponents have shown neither a likelihood of success nor the possibility of any harm. Nken, 129 S.Ct. at 1757. That alone suffices for the court to conclude that a stay is inappropriate here. Nevertheless, the court turns to the remaining two factors.

C

The third factor considers whether any other interested party would be injured if the court were to enter a stay. Plaintiffs argue a stay would cause them harm. Doc. # 718 at 9-10. Proposition 8 violates plaintiffs’ equal protection and due process rights, and the court presumes harm where plaintiffs have shown a violation of a constitutional right. Goldie’s Bookstore, Inc. v. Superior Court, 739 F.2d 466, 472 (9th Cir.1984). But no presumption is necessary here, as the trial record left no doubt that Proposition 8 inflicts harm on plaintiffs and other gays and lesbians in California. Doc. # 708 at 93-96 (FF 66-68). Any stay would serve only to delay plaintiffs access to the remedy to which they have shown they are entitled.

Proponents point to the availability of domestic partnerships under California law as sufficient to minimize any harm from allowing Proposition 8 to remain in effect. Doc. # 705 at 11. The evidence presented at trial does not support proponents’ position on domestic partnerships; instead, the evidence showed that domestic partnership is an inadequate and discriminatory substitute for marriage. Doc. # 708 at 82-85 (FF 52-54).

Proponents claim that plaintiffs’ desire to marry is not “urgent,” because they chose not to marry in 2008. Doc. # 705 at 11. Whether plaintiffs choose to exercise their right to marry now is a matter that plaintiffs, and plaintiffs alone, have the right to decide. Because a stay would force California to continue to violate plaintiffs’ constitutional rights and would demonstrably harm plaintiffs and other-gays and lesbians in California, the third factor weighs heavily against proponents’ motion.

D

Finally, the court looks to whether the public interest favors a stay. Proponents argue that the public interest tips in favor of a stay because of the “uncertainty” surrounding marriages performed before a final judicial determination of the constitutionality of Proposition 8. Doc. # 705 at 11. Proponents also point to the public interest as reflected in the votes of “the people of California” who do not want same-sex couples to marry, explaining that “[tjhere is no basis for this Court to second-guess the people of California’s considered judgment of the public interest.” Id. at 12.

The evidence at trial showed, however, that Proposition 8 harms the State of California. Doc. # 708 at 92-93 (FF 64). Representatives of the state agree. The Governor states that “[ajllowing the Court’s judgment to take effect serves the public interest” in “[ujpholding the rights and liberties guaranteed by the federal Constitution” and in “eradicating unlawful discrimination.” Id. at 5-6. Moreover, the Governor explains that no administrative burdens flow to the state when same-sex couples are permitted to marry. Id. at 7. The Attorney General agrees that the public interest would not be served by a stay. Doc. # 716 at 2.

The evidence presented at trial and the position of the representatives of the State of California show that an injunction against enforcement of Proposition 8 is in the public’s interest. Accordingly, the court concludes that the public interest counsels against entry of the stay proponents seek.

II

None of the factors the court weighs in considering a motion to stay favors granting a stay. Accordingly, proponents’ motion for a stay is DENIED. Doc. # 705. The clerk is DIRECTED to enter judgment forthwith. That judgment shall be STAYED until August 18, 2010 at 5 PM PDT at which time defendants and all persons under their control or supervision shall cease to apply or enforce Proposition 8.

IT IS SO ORDERED.  