The harm was only hypothetical

In legal terms, a stay is a delay in enforcing something. Judge Vaughn Walker in the Calif. gay marriage case issued a temporary one last week because he knew the appeals process needed to be sorted out. The anti-gay crowd asked him to extend it, pending appeal. Today, he issued his response: You've got one more week. If the 9th Circuit Court doesn't issue their own stay by then gay couples can start applying for marriage licenses.

Yesterday, Walker announced his ruling on the stay would come today. Gay couples started lining up at San Francisco City Hall, anticipating a favorable ruling. Alas, it wasn't as favorable as they had hoped for.

The details of today's ruling, as described by Ari Ezra Waldman, who sorted through the main decision last week.

* The damage to the ban's supporters -- which turned out to be hypothetical at the trial -- was tiny in comparison to the damage to gay couples in being denied a fundamental right.

* Another requirement for a stay is that the case would likely be overturned on appeal. But last week's ruling so completely demolished the anti-gay side there is no likelihood of successful appeal (then again, the guy who is evaluating the thoroughness of the ruling is the one who wrote it).

* There may not be any appeal. As I've noted, only those who were harmed have a right to an appeal. The state has said there is no harm to them. The anti-gay crowd wasn't able to prove they were harmed.

There simply isn't enough evidence to justify a stay.

Here are possible future scenarios, as described by Jon Davidson of Lambda Legal. You may want to create a map or flowchart.

* The appeal starts before a 3 judge panel at the 9th Circuit Court. They can decide the 9th Circuit should hear it or they can dismiss it.

* If the 3 judge panel dismisses, an appeal of the dismissal goes before all 27 judges of the 9th Circuit. If a majority want the case heard, it is randomly assigned to an 11 judge panel who will hear it.

* Those 11 judges could also dismiss it.

* The anti-gay crowd could take the case to the Supremes to answer a basic question: do they have the right to appeal?

* The Supremes could decline to hear the case. It's over.

* The Supremes could hear the case and decide there is no standing for appeal. It's over.

* The Supremes could decide the anti-gay crowd does have the right to bring an appeal. If so, it goes back to the 9th Circuit.

There is speculation that both the 9th Circuit and the Supremes will avoid ruling on a Constitutional question if they can. Avoiding the gay marriage issue by citing there is no standing for the appeal could save them a lot of trouble and confine the problem to Calif.

With so many unknowns one might wonder why I bother mapping it all out. I can only say that lately the whole process is becoming fascinating (and, no, I'm not going to give up music for law).