August 17, 2010 | by Lou Chibbaro Jr.
Appeals court stays Prop 8 ruling

A federal appeals court has reversed a decision last week by a lower court judge to lift the stay on his Aug. 4 ruling overturning Proposition 8, dashing the hopes of same-sex couples in California to quickly regain their right to marry.

A three-judge panel of the Ninth Circuit U.S. Court of Appeals in San Francisco on Monday granted a request by supporters of Prop 8 to keep the stay in place until the completion of their appeal, which is expected to continue through December.

In their two-page order, the judges said only, “Appellants’ motion for a stay of the district court’s order of Aug. 4, 2010 pending appeal is granted.”

They were referring to the Aug. 4 decision by U.S. District Court Judge Vaughn Walker declaring Prop 8’s ban on same-sex marriage null and void because it violates the U.S. Constitution’s equal protection and due process clauses.

But in an action viewed as favorable to same-sex marriage advocates, the appeals court judges also ordered that the case move forward on an expedited basis, setting strict deadlines for lawyers on both sides to file their briefs between September and November. They directed that arguments before the court would take place during the week of Dec. 6.

The action by appeals court judges Sidney Thomas, Michael Hawkins, and Edward Leavy reversed an Aug. 12 decision by Walker to lift a stay that he put in place nine days earlier.

Rather than allow same-sex marriages to resume in the state immediately upon issuing his Aug. 4 decision, Walker placed a stay on his own ruling, saying he wanted to give supporters and opponents of Prop 8 a chance to submit briefs arguing why a stay should or should not be kept in place during the appeal process.

After considering the arguments, Walker ruled Aug. 12 that a stay was not justified because allowing same-sex marriage to resume would not cause any harm to the state or its people. But he extended his stay to Aug. 18 to give the Ninth Circuit Court of Appeals a chance to decide the matter.

Unlike Walker, who issued an 11-page ruling explaining why he believed the stay should be lifted, the appeals court panel gave no explanation for its action.

However, while it rejected Walker’s decision to lift the stay, the appeals court panel appears to have given credence to Walker’s assertion in his Aug. 12 ruling that Prop 8 supporters may not have legal standing to appeal the case.

Walker noted in his Aug. 12 ruling that called for lifting the stay that the State of California may have sole legal standing to appeal a case like the one involving Prop 8. California Gov. Arnold Schwarzenegger and the state’s attorney general, Jerry Brown, have refused to defend Prop 8, forcing private advocates backing the same-sex marriage ban law to defend it in court.

Schwarzenegger and Brown have said they also oppose an appeal of Walker’s decision overturning Prop 8 and that the state would not be a party to the appeal.

“In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing,” the appeals court panel noted in its ruling Monday.

Officials with the California-based American Foundation for Equal Rights, which initiated the lawsuit by two same-sex couples that led to Walker’s decision to overturn Prop 8, sought to put an optimistic spin on the appeals court’s decision Monday to keep the stay in place.

“This means that although Californians who were denied equality by Proposition 8 cannot marry immediately, the Ninth Circuit, like the district court, will move swiftly to address and decide the merits of plaintiffs’ claims on their merits,” the group said in a statement.

Ted Olson, one of the two attorneys that argued for overturning Prop 8 at the district court trial earlier this year, called the expedited appeals court schedule significant.

“We are very gratified that the Ninth Circuit has recognized the importance and pressing nature of this case and the need to resolve it as quickly as possibly by issuing this extremely expedited briefing schedule,” he said.

But one of the attorneys that defended Prop 8 in court had a different assessment of Monday’s decision to keep the stay in place.

“It made no sense to impose a radical change in marriage on the people of California before all appeals on their behalf are heard,” said Jim Campbell, litigation staff counsel for the Alliance Defense Fund. “Refusing to stay the decision would only have created more legal confusion surrounding any same-sex unions entered while the appeal is pending. … ADF and the rest of the legal team is confident that the right of Americans to protect marriage in their state constitutions will ultimately be upheld.”

Evan Wolfson, executive director of Freedom to Marry, a same-sex marriage advocacy group, called the appeals court action “a disappointing delay for many Californians who hoped to celebrate the freedom to marry and full inclusion in society as soon as possible.”

Wolfson said that while the lawyers representing same-sex couples continue to argue the case in court, “we have more months in which to make our case in the court of public opinion.”

Rev. Anthony Evans, a D.C. minister and one of the leaders of the campaign to oppose same-sex marriage in Washington, said the appeals court’s action reflects “the will of the people and the word of God,” which he said “will prevail.”

Lou Chibbaro Jr. has reported on the LGBT civil rights movement and the LGBT community for more than 30 years, beginning as a freelance writer and later as a staff reporter and currently as Senior News Reporter for the Washington Blade. He has chronicled LGBT-related developments as they have touched on a wide range of social, religious, and governmental institutions, including the White House, Congress, the U.S. Supreme Court, the military, local and national law enforcement agencies and the Catholic Church. Chibbaro has reported on LGBT issues and LGBT participation in local and national elections since 1976. He has covered the AIDS epidemic since it first surfaced in the early 1980s. Follow Lou

8 Comments
  • It seems to me that their decision is “lipstick on a pig!” I don’t understand how anyone could consider it good new for marriage equality.

  • From the statement

    “However, while it rejected Walker’s decision to lift the stay, the appeals court panel appears to have given credence to Walker’s assertion in his Aug. 12 ruling that Prop 8 supporters may not have legal standing to appeal the case.”

    give one pause.. because if “may not have legal standing” is ruled, then the case in Judge Walker’s court “may not have legal standing”. This is based on the Defendants of Prop 8 legal standing.

    And if the Defendants “may not have legal standing” then the case is a mistrial from the start and back to square 1.

    Then a new trial would begin with a change of Venue so that Judge Walker would not be able to preside the case.

    The other way things could go is for the appeals court to hear the case and then isue a verdict and then shoot it up to the supreme court.

    Either way, it is going to take quite a while.

  • I applaud the efforts, in the end it will all work out. I question the people who wants to get married right as soon as its allowed again though, I just hope they are getting married for the right reasons and not just to do it to say that they did it. We planed our wedding for a few years before getting married, we didn’t look at each other and go , hey lets run down and get married just for kicks.

  • The stay is no surprise and it likely has no overall predictive value in guessing the final outcome. In many cases where a decision would change existing law, and where an appeal is expected, courts have issued stays in order to avoid unnecessary flip-flops in laws. Otherwise the same law could go in and out of effect several times in the course of trial and appeals. This stay is customary, procedural, and little more.

  • Every time there is a mention of gay marriage or gay rights, some so-called “Christian” preacher is quoted as saying that anything gay is against the word of God. This is not true and it bothers me that no one ever calls out these people for lying. If homosexuality were evil, don’t you think Jesus would have said so? Jesus never said a word about it! He did say that you should love God and you should love your neighbor, and that this summed up the whole teachings of the “law and the prophets”.

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