California Gay Marriage on Hold as Case Is Appealed

California Gay Marriage on Hold as Case Is Appealed
By JESSE McKINLEY
Copyright by The New York Times
Published: August 16, 2010
http://www.nytimes.com/2010/08/17/us/17prop.html?_r=1&hp


SAN FRANCISCO – A federal appeals court has extended a stay on same-sex marriages in California until it decides whether a ban on such unions is constitutional.

It is just the latest turn in a protracted legal battle over Proposition 8, the voter-approved ban.

The ruling, issued by a three-judge panel of the United States Court of Appeals for the Ninth Circuit, came less than a week after a federal district court judge, Vaughn R. Walker, lifted a stay that he imposed himself after ruling Proposition 8 unconstitutional. Even when lifting his stay on Thursday, Judge Walker allowed six days for the Ninth Circuit to review his ruling. That left many gay and lesbian couples and their supporters hopeful that same-sex marriages would resume on Wednesday at 5 P.M. when Judge Walker’s stay would have expired.

That will not happen. Now, such weddings will not resume until, at least, the appeal court hears the case. And perhaps not until it is decided by the United States Supreme Court, if then.

The Ninth Circuit panel – made up of Judges Edward Leavy, Michael Daly Hawkins and Sidney R. Thomas –determined that a stay pending appeal was appropriate, though the panel did set an expedited schedule for the appeal, of its own volition, or sua sponte as it said it in the second sentence of the ruling.

The panel scheduled opening briefs for Sept. 17, 2010, and set a December court date.

Richard L. Hasen, a professor of law at the Loyola Law School Los Angeles, said that the ruling “takes the heat off the Supreme Court” which likely would have been asked for an emergency stay by those who support Proposition 8 if the Ninth Circuit had not acted.

But Mr. Hasen added that the stay putting a halt to any potential marriages did not mean that the Ninth Court of Appeals will rule necessarily in favor of Proposition 8.

“I don’t think that the granting of the stay means much, if anything, about how the Ninth Circuit will rule on the merits,” he said. “It won’t be the same panel deciding the merits as decided the stay motion. And even ardent supporters of a constitutional right to same-sex marriage would have good reasons to have a stay imposed for now in this case.”

One of the issues likely to be settled by the appellate court is the issue of legal standing. Both California Gov. Arnold Schwarzenegger and Attorney General Jerry Brown –named as defendants in the case -- have voiced opposition to Proposition 8. That left the defense of the measure primarily to its ballot sponsors, including the group Protectmarriage.com. Some legal experts, however, have questioned whether a group that is not charged with enforcing a law can be found to be responsible for defending it.