Tuesday, August 17, 2010

Appeals Court Issues Stay on Walker's Prop 8 Ruling

It looks like it's going to be one of those legal and emotional roller coasters as the case for same-sex marriage works its way to the U.S. Supreme Court. A three-judge panel of the Ninth U.S. Circuit Court of Appeals ruled Monday to issue a stay in Judge Vaughn Walker's ruling last week striking down California's Proposition 8. While this move was not totally unexpected, many gay and lesbian couples across California had planned on marrying as early as tomorrow.

This is actually one of those good news/bad news things. While the stay means a delay in marriage equality in the Golden State, the court also expedited the appeals process, scheduling the the appeal for December 6th. Normally an appeal could be be scheduled one to two years out. The proponents of Prop 8 filed an emergency stay request citing the confusion that would ensue if gay couples were allowed to wed during the appeals process only to have Prop 8 upheld later.

On the up side, the entire appeals process hinges on whether or not the defenders of Prop 8 have any legal standing to file an appeal at all in the case of Perry vs. Schwarzenegger. Both Gov. Schwarzenegger and California Attorney General Jerry Brown have chosen not to defend Prop 8 in the original court case or in the appeals process.

The San Francisco Chronicle reports via SFGate.com:
While the Ninth Circuit judges did not give a reason for their decision, they did instruct Prop. 8 proponents to explain why they had legal standing to act in the interests of the state, which is not defending Prop. 8.

The question of standing has become crucial since Walker, in striking down Prop. 8, wrote that the initiative's defenders "may have little choice but to attempt to convince either the governor or the attorney general to file an appeal."

Chances are slim that Gov. Arnold Schwarzenegger or Attorney General Jerry Brown will do so, considering that both have pressed for same-sex marriages to be allowed to resume since Walker's ruling.

While asking the Ninth Circuit to allow same-sex marriages to proceed, San Francisco City Attorney Dennis Herrera has focused on Walker's contention and maintained that Prop. 8 supporters have no right to appeal or even ask for a stay. He took the wording in Monday's ruling to mean that the court is seriously considering that argument.

Charles Cooper, an attorney for Prop. 8's proponents, said in a court filing Monday that the initiative's sponsors had clear standing to defend their measure, given that the state had declined to do so.

Cooper also supported a long-running bid by Imperial County - which is also now in front of the Ninth Circuit - to intervene in support of Prop. 8.

Lawyers for Advocates for Faith and Freedom, which is giving free representation to Imperial County, said the county has an interest in the regulation of marriages because it licenses and performs them. Nearly 70 percent of residents casting ballots there in November 2008 voted to approve Prop. 8.

In an interview Monday, attorney Robert Tyler accused Walker of a "calculated" decision to keep Imperial County out of the case while, at the same time, casting doubt on the standing of Prop. 8 proponents.
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