by Rex Wockner
The Ninth 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 Ninth 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 Ninth 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 Ninth 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 Ninth 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 Ninth 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 Ninth Circuit’s order did not explain its determination.