California Gay Marriage Ban Extended

[Lord Jim]

Calif. gays must wait to wed during Prop 8 appeal

By LISA LEFF (AP) – 6 hours ago

SAN FRANCISCO — Gay couples who had been gearing up to get married in California this week had to put their wedding plans on hold once again after a federal appeals court said it first wanted to consider the constitutionality of the state's same-sex marriage ban.

A three-judge panel of the 9th U.S. Circuit Court of Appeals imposed an emergency stay Monday on a trial court judge's ruling overturning the ban, known as Proposition 8. Chief U.S. District Court Judge Vaughn Walker had ordered state officials to stop enforcing the measure starting Wednesday, clearing the way for county clerks to issue marriage licenses to same-sex couples.

"It's saddening just to know that we still have to keep waiting for this basic human right," Marcia Davalos, of Los Angeles, a health care advocate who had planned to marry her partner, Laurette Healey, said when the stay was issued Monday. "We were getting excited and then all of a sudden it's like, 'Ugh.' It's a roller-coaster."

Lawyers for the two gay couples who challenged the ban said Monday they would not appeal the panel's decision on the stay to the U.S. Supreme Court. They said they were satisfied the appeals court had agreed to fast-track its consideration of the Proposition 8 case by scheduling oral arguments for the week of Dec. 6.

"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, president of the American Foundation for Equal Rights, a group funding the effort to get the voter-approved gay marriage ban permanently overturned. "Our attorneys are ready to take this case all the way through the appeals court and to the United States Supreme Court."

Attorneys for backers of the voter-approved measure applauded the decision. In seeking the emergency stay, they had argued that sanctioning same-sex unions while the case was on appeal would create legal chaos if the ban is eventually upheld.

"Invalidating the people's vote based on just one judge's opinion would not have been appropriate, and would have shaken the people's confidence in our elections and the right to vote itself," said Andy Pugno, general counsel for the coalition of religious and conservative groups that sponsored Proposition 8.

Under the timetable laid out Monday, it was doubtful a decision would come down from the 9th Circuit before next year.

A different three-judge panel than the one that issued Monday's decision will be assigned to decide the constitutional question that many believe will eventually end up before the Supreme Court.

County clerks throughout the state had been preparing to issue marriage licenses to same-sex couples for the first time since Proposition 8 passed in November 2008. The measure amended the California Constitution to overrule a state Supreme Court ruling that legalized same-sex unions earlier that year.

"I'm sad, but I'm also glad that I didn't pay the $100 to reserve an appointment at the clerk's office," said Thea Lavin, 31, of San Francisco, who had planned to wed her partner, Jess Gabbert, 30, if the stay were denied. "This has happened so many times before where we take two steps forward, one step back."

Walker ruled on Aug. 4 that Proposition 8 violated the equal protection and due process rights of gays and lesbians guaranteed under the U.S. Constitution.

The ban's sponsors appealed that ruling and also asked the 9th Circuit to block same-sex weddings in the meantime. They claimed in papers filed with the 9th Circuit that gay marriages would harm the state's interest in promoting responsible procreation through heterosexual marriage.

California Attorney General Jerry Brown had joined lawyers for the plaintiffs in urging the appeals court to allow the weddings this week, arguing that keeping the ban in place any longer would harm the civil rights of gays and lesbians.

In a two-page order granting the stay, the appeals court panel did not indicate why it was keeping Proposition 8 in effect until it could consider the appeal of Walker's verdict.

But it ordered Proposition 8 sponsors to address in their opening brief due Sept. 17 whether they even have the legal right to try to have the trial judge's ruling overturned. Both Brown and California Gov. Arnold Schwarzenegger, the original defendants in the case, have said they support same-sex marriage and refused to defend Proposition 8 in court.

"The delay is excruciating and heartbreaking I know for the couples, but the ruling did include a significant victory by expediting the case and by highlighting that the proponents have a heavy lift to show they even have the right to bring an appeal," said Shannon Minter, legal director of the National Center for Lesbian Rights. "So those aspects of today's ruling do go some way legally to counterbalance the disappointment."

Currently, same-sex couples can legally wed only in Massachusetts, Iowa, Connecticut, Vermont, New Hampshire and Washington, D.C.

http://www.google.com/hostednews/ap/art ... QD9HL4DRG0

This seems to me to be the right decision....

I don't see the logic in permitting gay marriages to go forward until the Supreme Court has ruled on this. Especially in light of the fact that no matter how one feels about the issue, it has to be conceded that given the court's current composition the likely hood that Prop 8 will be declared Constitutional is quite high. Given that fact, it seems cruel to me to allow folks to go ahead with "marriages" that stand a very good chance of being invalidated.

This :

"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, president of the American Foundation for Equal Rights, a group funding the effort to get the voter-approved gay marriage ban permanently overturned.

Strikes me as a pretty naive view.

I will say one thing, this case has certainly created some "strange bedfellows":, so to speak....

The lead attorney for the Prop 8 opponents is none other than Ted Olson, (whose wife, author and political commentator Barbara Olson died in the plane that hit the Pentagon on 9/11) former GWB Solicitor General, and lead attorney for Bush in Bush v Gore....

[dales]

I see a rush of december brides

[Gob]

Can I have a check here?

1)Calif govt, instead of passing laws, puts it to the people to vote on whether they want gay marriage or not.

2) People vote NO!

3) Gay's go to court, judge says "Yes you can marry".

4) Calif has to abide by Judge's decision.

5) Someone goes to a bigger and better court, and argues gays shouldn't be allowed to marry.

6) Bigger court says, "No No No Calif, no gay marrying for you."

7) Calif gays cannot marry.

Ok, in the UK, govt of the day puts gay marriage on their agenda, passes laws, gays get married.

Now they cannot get married while it is legal until a bigger court says yeah or nay?

Can you guys make any decision without all this hoo ha?

[Lord Jim]

Well Strop, your analysis misses step one in this process:

The California Supreme Court, by a vote of 4-3 strikes down the existing law prohibiting gay marriage.

The rest of it really isn't all that complicated:

Now they cannot get married while it is legal until a bigger court says yeah or nay?

It is not the case that gay marriage in California is currently "legal"...

A federal judge said that it should be, because in his view the prohibition against gay marriage violates the US Constitution, but that opinion is not law because it has been stayed by the appellate court from going into effect.

Currently, the prohibition remains the law.

Our system is designed to make power diffuse and to put it in many hands; so I guess to someone who comes from a system where decision making is highly centralized, the process looks unruly....

[Gob]

Our system is designed to make power diffuse and to put it in many hands; so I guess to someone who comes from a system where decision making is highly centralized, the process looks unruly....

Can't argue with that. Though "unruly" isn't quite the descriptor I'd use

[BoSoxGal]

Too bad - California could really use the boon to the economy (now) that a gay marriage industry would comprise.

[Andrew D]

I don't see the logic in permitting gay marriages to go forward until the Supreme Court has ruled on this. Especially in light of the fact that no matter how one feels about the issue, it has to be conceded that given the court's current composition the likely hood that Prop 8 will be declared Constitutional is quite high. Given that fact, it seems cruel to me to allow folks to go ahead with "marriages" that stand a very good chance of being invalidated.

I think that the reason for Judge Walker's delaying the effect of his own ruling and the reason for the Ninth Circuit's stay are the opposite of a concern that marriages will end up being invalidated. The reason for both of those decisions appears to be the desire to avoid a small window during which gay marriages can be validly created, which might cause considerable confusion.

The voters (before Proposition 8) enacted a statute prohibiting gay marriages. Some mayors declared that law to be, in their view, unconstitutional, and they authorized gay marriages. The California Supreme Court ruled that those mayors had no authority to contravene a State statute which had not been invalidated by a court, so it held that those marriages were invalid.

Then the California Supreme Court struck down the statute as violating the California Constitution. At that point, local governments could legitimately authorize the solemnization of gay marriages. And they did.

Then the voters enacted an amendment to the State Constitution (Proposition 8) which prohibited gay marriages. The California Supreme Court upheld that amendment (which was challenged principally on obscure grounds which need not detain us).

So the gay marriages that were solemnized between the time that the statute was enacted and the time that the statute was struck down were invalid: During that time, local governments had no authority to violate a State statute.

But the marriages that were solemnized between the time that the statute was struck down and the time that Proposition 8 came into force remained valid: During that time, under the then-existing law of California, local governments did have authority to solemnize gay marriages.

And that, I think, is what both Judge Walker and the Ninth Circuit were trying to avoid: a situation in which gay marriages solemnized between the time of Walker's ruling and the time of the Ninth Circuit's (perhaps) overturning that ruling would be valid, even though those solemnized before Walker's ruling and those solemnized after the Ninth Circuit's (perhaps) overturning Walker's ruling would not.

[Gob]

If all the energy, money and intellect which the USA squanders on elections, amendments, petty laws, and suing each other, was harnessed and turned to more creative outlets, you'd be w-a-a-a-y ahead of the rest of the world.

[Scooter]

I think that the reason for Judge Walker's delaying the effect of his own ruling and the reason for the Ninth Circuit's stay are the opposite of a concern that marriages will end up being invalidated. The reason for both of those decisions appears to be the desire to avoid a small window during which gay marriages can be validly created, which might cause considerable confusion.

That does not appear to have been of concern to Walker. In his ruling on the motion to stay, Walker went through the all the factors to be considered in his decision and showed that they ALL weighed against granting a stay, and so he denied a stay while appeals were pursued, but knowing his ruling was going to be appealed, he granted a brief stay (until August 18) "in order to permit the Court of Appeals to consider the issue in an orderly manner." He does not appear to have any problem with marriages proceding while appeals are being heard, and basically told the Prop 8 proponents that, if you're not planning to enter into a same-sex marriage yourself, then why the fuck do you care whether a "cloud of uncertainty" hangs over the marriages of those that do?

He also alluded to the fact that the intervenors are going to have a hard time establishing that they have standing to appeal the ruling, and while the 9th Circuit did grant a stay until they could hear arguments on Dec 6th, they ordered the intervenors to begin their brief with arguments to support granting them standing. Not sure if it was a lob ball thrown to an legal team that has proven itself to be completely inept, or if it was a shot across the bow suggesting that the appeal probably won't be heard, but my understanding is that, unless decades of precedent are overturned, these clowns don't meet the criteria to be granted standing, now that the defendants named on behalf of the State have declined to pursue an appeal.

Legal analysts are saying that Walker has played this very intelligently throughout. He gave the intervenors every reasonable opportunity to beef up what was an incredibly weak case. He lamented repeatedly in his ruling about the evidence the intervenors could have presented, but didn't. He very meticulously spelled out how he decided on all of his findings of fact. So any appeals court is going to have to do some really good tap dancing to get around those aspects of his decision. Plus, everything about this decison screams that it is being written to Justice Kennedy who, in the end, is the only one who needs to be and can be convinced.

A decision by the 9th Circuit that the intervenors don't have standing to appeal, and the SCOTUS refusing to hear an appeal of that decision, in addition to being the most legally sound course, is also the easy out for everyone concerned. The State has said plainly it does not wish to see Walker overturned. The SCOTUS will not have to do handstands to explain why none of its previous rulings limiting standing apply in this case. And by not pushing this case higher up the food chain, its effect will be limited to California, rather than extending it across the country and invalidating federal DOMA in the process.

So the conservative core of the SCOTUS has to decide, do they, with good legal justification, let this ruling stand and give SSM proponents victory in one (albeit large) state, or do they engage in the sophistry necessary to allow this case to proceed to appeal where they must gamble on whether Kennedy wll decide to make SSM legal in every state. (Don't forget, Kennedy authored Lawrence v. Texas, and Walker has very deftly incorporated much of the same type of analysis and reasoning from that decision into his own).

eta - Oh yeah, and the attempt to smear Walker by accusing him of bias because he is allegedly gay (which may or may not be true, some claim it to be an "open secret") has backfired spectacularly. Walker was to be appointed to the bench by Ronald Reagan, but the appointment got mired in controversy (led by none other than Nancy Pelosi) because Walker had been counsel to the U.S. Olympic Committee in its trademark infringement suit againsts what was then called the "Gay Olympics", now called the Gay Games. Among the tactics employed by Walker in that case was obtaining a lien against the home of one of the defendants who was in the process of dying of AIDS. Not exactly someone who could be called symapathetic to gay causes, regardless of whether he himself is gay or not.

[@meric@nwom@n]

Gays having the same rights as heteros is going to happen. It's too bad it has to be so wallow-in-the- mud-like to get there.

Someone just launched a bridal magazine for same sex couples. http://www.cnn.com/2010/LIVING/08/12/eq ... index.html

[dales]

If all the energy, money and intellect which the USA squanders on elections, amendments, petty laws, and suing each other, was harnessed and turned to more creative outlets, you'd be w-a-a-a-y ahead of the rest of the world.

We are the creative center of the world, look at Hollywood's obscene profits.

I do agree with your premise though, Gob.

[Sue U]

If all the energy, money and intellect which the USA squanders on elections, amendments, petty laws, and suing each other, was harnessed and turned to more creative outlets,

Um, those are our creative outlets.

[Big RR]

Certainly far more creative than the vast majority of stuff coming out of Hollywood.

[Gob]

LOL! @Sue and RR!!

[Lord Jim]

If all the energy, money and intellect which the USA squanders on elections, amendments, petty laws, and suing each other, was harnessed and turned to more creative outlets, you'd be w-a-a-a-y ahead of the rest of the world.

I agree that our society is overly litigious, (BTW I'd be interested to know if there are any US non-lawyers here who disagree with that) but as for the other things you mention...

I think to a large extent they just reflect the robust nature of our democracy...