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California Gay Marriage Ban Will Continue During Court Appeal

Resource type: News

Businessweek | [ View Original Source (opens in new window) ]

By Joel Rosenblatt and Edvard Pettersson.  Marriages of same-sex couples in California won’t be allowed while supporters of a state law outlawing the practice challenge a lower-court ruling declaring the ban unconstitutional, a federal appeals court said.

The U.S. Court of Appeals in San Francisco granted a request yesterday by proponents of the state constitutional amendment, Proposition 8, to delay enforcement of the Aug. 4 court order voiding the voter-approved measure. The three-judge appeals panel set an expedited hearing schedule for the challenge with arguments scheduled for the week of Dec. 6.

The lower court ruling by U.S. District Judge Vaughn Walker in San Francisco said evidence was “overwhelming” that Proposition 8 violates constitutional equal protection rights. Walker’s ruling prohibiting California from enforcing the ban came at the conclusion of the first federal trial to test the legality of limiting marriages to a man and a woman.

The appellate panel said in its two-page order that proponents of the ban will need to show that they have legal standing to challenge Walker’s ruling.

Walker said in an Aug. 12 order that he saw no reason to let the ban stay in place while its supporters appeal his ruling. The judge said it was doubtful proponents of the ban could proceed on appeal because they don’t have anyone officially representing the state of California on their side.

Schwarzenegger, Brown

Both Governor Arnold Schwarzenegger, a Republican, and Attorney General Jerry Brown, a Democrat, said they agreed with Walker that the marriage ban should be lifted immediately. The ban was to formally end this week.

“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 possible by issuing this extremely expedited briefing schedule,” Ted Olson, a lawyer representing two same-sex couples and the City of San Francisco in the case, said in a statement.

Charles Cooper, the lead lawyer for proponents of the ban, argued to the appellate court that allowing gay weddings to proceed before the appeal is resolved could do “irreparable harm,” while it wouldn’t hurt same-sex couples to wait.

‘Additional Delay’

“A stay will at most subject plaintiffs to a period of additional delay pending a final determination of whether they may enter a legally recognized marriage relationship,” Cooper wrote in an Aug. 12 filing. “During this time, plaintiffs will have access to the rights and responsibilities of marriage through domestic partnership,” as provided by California law.

Cooper didn’t return a call to his office after regular business hours yesterday.

Walker had ruled that proponents of Proposition 8 weren’t persuasive that a stay should be granted because they failed to prove a good chance of success on appeal. They didn’t fulfill their requirement to show they will be harmed by the original ruling overturning the same-sex marriage ban, the judge said.

Since Proposition 8 passed in 2008 by 52 percent of California’s voters, Iowa, Vermont, New Hampshire, Connecticut and the District of Columbia have legalized same-sex marriage. Massachusetts did so in 2004.

The case is Perry v. Schwarzenegger, 10-16696, U.S. Court of Appeals for the Ninth Circuit (San Francisco). The district court case is Perry v. Schwarzenegger, 09-02292, U.S. District Court, Northern District of California (San Francisco).

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marriage equality, Proposition 8