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Prop. 8 gay marriage delay a 'good thing' for eager couples?

A judge said Monday that same-sex couples have to wait until a December appeal to his Prop. 8 ruling. The decision might have delayed intervention from the US Supreme Court.

By Daniel B. WoodStaff writer / August 17, 2010

Tom Rastrelli and Bruce Mayhalo, from right, await news along with other gay couples at Beverly Hills Municipal Court on Thursday on whether a federal judge would stay his ruling on Proposition 8, California's same-sex marriage ban.

Adam Lau/AP


Los Angeles

Same-sex California couples planning to wed Wednesday will have to wait until at least December, following a decision by the US Ninth Circuit Court of Appeals.

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On Tuesday a three-judge panel extended a stay on District Judge Vaughn Walker’s ruling that marriage is a protected right for same-sex couples. The panel said the court would hear the Proposition 8 challenge on an expedited basis and hold arguments the week of Dec. 6. Another panel of three judges is expected to rule on the appeal.

Judge Walker decided Aug. 4 that Proposition 8 violated the US Constitution, and later ordered county clerks offices to begin granting same-sex marriage licenses at 5 p.m. Wednesday unless a higher court intervened. The Ninth Circuit panel gave no explanation for why it stayed Walker's order.

While the ruling is a disappointment to many gay marriage advocates, legal scholars say it may be more beneficial to them in the long run.

“In terms of the ultimate result, this may be a good thing for Prop. 8 opponents because it doesn’t force the issue before the US Supreme Court right now,” says Kelly Strader, a law professor at Southwestern Law School.

If the panel had refused to place a hold on Walker’s ruling, Prop. 8 supporters were prepared to seek a stay from the US Supreme Court, which is divided on same-sex marriage.

In the year or more that it could now take for the case to reach the high court, more states will have time to adopt same-sex marriage statutes, and more judicial opinions will be formed to support the issue, the thinking goes.

The other main issue that has yet to be decided in this case, legal scholars say, is whether Proposition 8 sponsors have legal authority – called “standing” – to appeal Walker’s conclusions about the constitutionality of the ban.

Gov. Arnold Schwarzenegger and California Attorney General Jerry Brown, the two state officials most likely to have appealed the decision, have come out in support of same-sex marriage and will not do so. In their place, ProtectMarriage, a coalition of pro-family community and religious organizations who have united to restore the definition of marriage as between a man and a woman, has taken up the appeal. In granting the stay, the Ninth Circuit ordered the group to explain why they have legal authority, or standing, to continue the case.