Prop. 8 marriage ban holds — for now
on Mar 23, 2011 at 1:14 pm
The Ninth Circuit Court refused on Wednesday to lift its temporary order that bars same-sex couples from getting married in California while that appeals court is weighing the constitutionality of Proposition 8, forbidding such unions.  In a one-paragraph order, found here, the three-judge panel ruled that two same-sex couples had not met the standard for lifting a court’s stay. Thus, a federal judge’s decision last August striking down the ballot measure will remain on hold for the time being.
The new order said that the motion to open the way for gays and lesbians to marry was being denied “at this time.” That seemed only to mean that the panel did not think the challengers to Proposition 8 had yet made an argument for legal relief, and was not intended as a signal that, if the appeals court ultimately decides the merits of the case, the challengers would lose.
The practical effect of the order, however, may be a considerable delay before the constitutionality of Proposition 8 is actually settled in court.  The Ninth Circuit is waiting for the California Supreme Court to provide it with some legal advice on a question of state law that may influence whether anyone can continue to defend in court the validity of the marriage ban — that is, whether the backers of the ban can defend it since state officials have refused to do so.
The state court has just begun the process of examining that question, and has indicated that it will not hold oral argument on it until September. That almost certainly means the state court would not rule before sometime next fall, allowing the case to then return to the Ninth Circuit for its consideration of whether to let the case go forward, or to dismiss it based on a finding that no one has “standing” to defend the law in the place of state officials.
The prospect of such an extended delay was one of the reasons the same-sex couples’ lawyers had made in asking the Circuit Court to lift the stay it had issued last August, temporarily blocking the decision by U.S. District Judge Vaughn R. Walker of San Francisco striking down the marriage ban under the federal Constitution. Another reason for the plea to allow same-sex marriages to resume (they had been allowed temporarily under state law) was that the Obama Administration had announced a new legal position that laws treating gays and lesbians differently because of their sexual identities were unconstitutional, under a more rigorous constitutional standard such laws would have to meet.
The couples had argued that every day of delay of the right to marry, under Judge Walker’s decision, was a denial of justice. The backers of Proposition 8 had resisted lifting the stay, arguing that the stay was necessary to allow the judicial process to continue in a way that showed respect for California state court and for the voter-initiative powers that were used to get Proposition 8 on the ballot and get it approved.
The Circuit Court, in refusing to lift the stay, relied in part on a Supreme Court ruling in April 2009 (Nken v. Holder), clarifying the standards for staying a court order pending an appeal. In that case, the Supreme Court’s opinion commented: “It takes time to decide a case on appeal. Sometimes a little; sometimes a lot.”  And, thus, it said, courts had to have the option of temporarily blocking some court’s order “pending the outcome of an appeal.”
The Circuit Court also relied upon one of its own precedents, a 2006 decision in Southeast Alaska Conservation Council v. U.S. Army Corps. of Engineers, outlining a standard for wiping out (“vacating”) stay orders.
