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Written by Lisa Neff, Staff writer
Aug 25, 2010
After a federal district court judge lifted his stay on same-sex marriages in California, couples were prepared to legally exchange vows on Aug. 18.
But a three-judge panel of the 9th U.S. Circuit Court of Appeals silenced their wedding bells by reinstating the stay on Aug. 16. The good news for same-sex couples is that the appeals court set a fast-track schedule for reviewing the case, Perry v. Schwarzenegger.
The case challenges Proposition 8, a ballot question approved by a majority of voters in the 2008 that amended the California Constitution to prohibit same-sex couples from legally marrying. Early in August, in a widely anticipated ruling, U.S. District Court Judge Vaughn Walker declared Prop 8 unconstitutional because it violated the equal protection and due process rights of gay and lesbian citizens.
Immediately after Walker issued his decision, Prop 8 proponents, who defended the measure in court after Gov. Arnold Schwarzenegger and Attorney General Jerry Brown refused to participate in the case, sought a stay of same-sex marriages pending an appeal. Schwarzenegger and Brown, on the other hand, called for an immediate resumption of same-sex nuptials.
Walker did initiate a stay, but said it would be lifted Aug. 18, prompting a number of couples to make marriage plans.
Then, on Aug. 16, the appeals court intervened.
In their initial challenge to Walker’s decision, attorneys defending Prop 8 wrote, “The record leaves no doubt, none at all, that California, 44 other states and the vast majority of countries throughout the world continue to draw the line at marriage because it continues to serve a vital societal interest that is equally ubiquitous – to channel potentially procreative sexual relationships into enduring, stable unions for the sake of responsibly producing and raising the next generation.”
The appeals court panel issued a two-page brief granting the stay, but didn’t include a reason for the stay, only the schedule for the appeal.
“It is frustrating that the appeals court seems not to have applied the standard test for when a stay should be ordered,” said Jennifer C. Pizer of the LGBT group Lambda Legal. “But, at least (the) case management order gives no substantive disagreement with Judge Walker’s conclusion that Prop 8 only serves to harm the countless lesbian and gay couples in California who are denied their constitutional rights, without advancing any legitimate public purposes. Instead, the order just seems to represent step-by-step housekeeping by the court.”
LGBT civil rights advocates also saw a positive in the appeals court’s decision to hear arguments in the case as early as December. The court does not typically move so quickly.
“Today’s order from the 9th Circuit for an expedited hearing schedule ensures that we will triumph over Prop 8 as quickly as possible,” said Chad Griffin of the American Foundation for Equal Rights, a group funding the effort to overturn Prop 8.
The court’s schedule calls for oral arguments in the case the week of Dec. 6 in San Francisco. To meet that accelerated hearing date, the court ordered Prop 8 proponents to file their opening brief by Sept. 17.
“The very fast schedule set for the appeal is excellent news for same-sex couples who hope to regain their rights as soon as possible,” Pizer said. “Even better may be the court’s direction that Prop 8’s proponents should explain why they think they have legal standing to appeal. This means they must try to explain how Prop 8 deprives them of a legal right or interest. If they cannot show that Prop 8 actually harms them, then the federal procedural rules may prevent the appeals court from hearing their appeal.”
