Gay marriages on hold until 2011
SAN JOSE — California's same-sex weddings have been called off again — at least until early next year.
In a brief order, the 9th U.S. Circuit Court of Appeals on Monday put the legal battle over Proposition 8 on hold while it considers the constitutionality of the state's ban on same-sex marriage, dashing the hopes of gay and lesbian couples who hoped they could start lining up for marriage licenses by the middle of this week.
The appeals court agreed to stay Chief U.S. District Judge Vaughn Walker's order last week that would have barred the state from enforcing Proposition 8. The 9th Circuit chose instead to proceed directly to the heart of the case — the appeal of Walker's initial 136-page ruling on Aug. 4 that struck down Proposition 8 and found that it violates the equal rights of California's same-sex couples.
"I think it's unfortunate that my constitutional rights are being put on hold, but I'm going to give the courts the benefit of the doubt because I think they are going to come out on our side in the end," said Brian Fiorino, who had lined up in San Jose with his partner, Duke Khuu, last week awaiting Walker's decision and hoping to wed right away.
The 9th Circuit gave the two sides in the case the next few months to file briefs on Walker's ruling, and set arguments for the week of Dec. 6, which would likely push a decision into next year. Proposition 8 defenders had urged the 9th Circuit to put same-sex marriages on hold while the appeal proceeds.
Lawyers for same-sex couples said they would not appeal Monday's order to the U.S. Supreme Court because they were satisfied that the 9th Circuit had put the case on a fast track to resolution. They added that they would prefer now to go directly to the legal fight over Walker's ruling on the validity of the state's same-sex marriage ban.
"We're ready to go," said Theodore Boutrous Jr., one of the attorneys fighting to overturn the ban.
The three-judge 9th Circuit panel did not elaborate on why it kept the same-sex marriage ban in place for the time being. Carl Tobias, a University of Richmond law professor, said the court may simply have decided to preserve the "status quo" as the appeal is reviewed, particularly given widespread predictions the case is destined for the Supreme Court.
But in what may become a crucial element in the case, the appeals court asked the ballot measure's lawyers to offer arguments on why they have the legal right to appeal when the state's top two officials, Gov. Arnold Schwarzenegger and Attorney General Jerry Brown, refuse to defend the law and say it is unconstitutional. Gay-rights lawyers and San Francisco city officials have argued in court papers that the Proposition 8 campaign does not have legal standing to appeal, and Walker himself questioned whether they do in his order last week.
If the 9th Circuit and later the Supreme Court agrees and finds same-sex marriage foes can't defend the law on their own, it could spell a quick end to the first federal court test in the nation of a state ban on gay marriage. Walker's ruling on Proposition 8 would stand uncontested.
Douglas Napier, a senior lawyer with the Alliance Defense Fund, one of the groups defending the law, said they have the right to press the appeal.
"We have standing," he said. "The people of California shouldn't lose by a forfeit because the governor refused to do his job." Schwarzenegger took no position in the 9th Circuit, but previously urged Walker to allow same-sex marriages to proceed right away.
