California same-sex marriages blocked for several more months

The 9th U.S. Circuit Court of Appeals on Aug. 16 blocked any same-sex
marriages from taking place in California while proponents of the state’s
marriage ban appeal the Aug. 4 district-court ruling that found
Proposition 8 in violation of the U.S. Constitution.

The appeals court said it will hear the case the week of Dec. 6, and it
set up an expedited briefing schedule for the case’s attorneys.

The court also ordered the proponents of the ban to prove that they have
“standing” to appeal the decision made by District Judge Vaughn Walker.

The actual defendants in the case, including Gov. Arnold Schwarzenegger
and Attorney General Jerry Brown, have refused to defend Prop 8, and the
Court of Appeals’ order seemed sympathetic to the idea that proponents of
the ban, as “defendant-intervenors,” are not properly situated to appeal
Walker’s ruling.

If they are not, that could end the case, and same-sex marriage would
again be legal in California under Walker’s original ruling, though a
decision on standing could be appealed to the U.S. Supreme Court. The
defendant-intervenors are the same people who put Prop 8 on the ballot in
2008 to overturn the state’s legalization of same-sex marriage.

“The 9th Circuit put the appeal on a fast track and specifically directed
the Prop 8 proponents to address ‘why the appeal should not be dismissed
for lack of Article III standing’ in their opening brief,” said the
National Center for Lesbian Rights. “That means the court will consider
whether the proponents of Prop 8 have the right to file an appeal at the
same time that it is considering whether Judge Walker’s decision that Prop
8 violates the federal Constitution is legally correct.”

The proponents’ opening brief is due Sept. 17, the plaintiffs’ opposing
brief is due Oct. 18 and the proponents’ reply brief is due Nov. 1.

A decision that the proponents lack standing could come in December. If
the 9th Circuit decides the proponents have standing and goes on to
consider the constitutionality of Prop 8, it would not be expected to
issue a decision until sometime in early 2011. Either decision could be
appealed to the U.S. Supreme Court.

Meanwhile, the plaintiffs challenging Prop 8 could appeal the 9th
Circuit’s current stay to the U.S. Supreme Court right now but have given
no indication they will do so.

Robin Tyler, whose marriage to Diane Olson was the first same-sex marriage
in Southern California two years ago, said the stay is deeply
disappointing.

“We are tired of our emotions being batted around like pingpong balls,”
Tyler said. “Gays and lesbians are human beings, and there is not one
legal reason to delay same-sex marriages in California. … Martin Luther
King said, ‘Justice delayed is justice denied.’ He also said, ‘Wait means
never.’ Once again, our hopes have been dashed.”

NCLR Executive Director Kate Kendell said: “Every additional day that
couples must wait to marry again in California is painful, but despite the
terrible disappointment for the many couples whose right to marry has been
delayed yet again, today’s ruling includes another significant victory for
our side. The court did the right thing by putting the case on a fast
track and specifically ordering that Prop 8 proponents show why they have
a legal right to appeal. This ruling brings us one step closer to ending
the nightmare of Prop 8 and restoring full equality for all Californians.”

Lambda Legal called the stay “painful.”

“We are saddened by the 9th Circuit’s decision to maintain the stay of
Judge Walker’s ruling that Prop 8 is unconstitutional,” said Jennifer
Pizer, director of the group’s Marriage Project. “We very much hoped to
see same-sex couples again free to celebrate their love and mutual
devotion through marriage starting later this week. We know this delay is
painful for couples in love, who have been denied their basic rights for
too long already.”

She also said the 9th Circuit failed to apply “the standard test for when
a stay should be ordered.”

The test requires, among other things, that an appellant prove a strong
likelihood of winning on appeal and that the appellant would suffer an
irreparable injury without a stay. Judge Walker said the Prop 8 proponents
failed to pass any part of the test. The 9th Circuit’s order did not
explain its determination.

By Rex Wockner