New York Times: California Gay Marriage on Hold as Case Is Appealed

California Gay Marriage on Hold as Case Is Appealed

By JESSE McKINLEY

Published: August 16, 2010

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.

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 he had imposed to allow proponents of the ban to argue why same-sex marriages should not proceed. On Aug. 4, Judge Walker ruled that Proposition 8 was 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 appeals court decides the case. And perhaps not until it is decided by the United States Supreme Court.

The Ninth Circuit panel made up of Judges Edward Leavy, Michael Daly Hawkins and Sidney R. Thomas — determined that a stay pending the appeal was appropriate.

The panel requested the first briefs to be filed in September and for the appeal to be heard in court in December.

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 is likely to 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’s putting a halt to any potential marriages did not mean that the Ninth Circuit Court of Appeals would 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.”

He added he believed that even supporters of same-sex marriage could see the logic of extending a stay.

One of the issues likely to be settled by the appeals court is the issue of legal standing. Both Gov. Arnold Schwarzenegger and Attorney General Jerry Brown of California — 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.