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.
“The practical effect of imposing the stay until at least December is to give the 9th Circuit an opportunity to review more carefully whether the proponents have standing to bring an appeal,“ adds UC Berkeley School of Law professor Joan Hollinger.
“The court wants to hear whether or not the proponents have a big enough horse in the race,” says Daria Roithmayr, a professor at the University of Southern California's Gould School of Law. “If they can’t show why they have standing, the appeal is over and the trial court decision stands. If the Ninth Circuit rules they do have standing, then the case begins its ascent up the chain to the US Supreme Court.”
“The media should be focusing on the absence of harm demonstrated at trial by the Pro-8 side," he says. "The witnesses for them conceded that same-sex marriage doesn't harm heterosexual couples in any way, and that the ban on same-sex marriages directly harms families,” says Mr. Smith. “Given that over 36,000 gay and lesbians got married in California in the brief period when it was legal, if harm occurs from same-sex marriages, the appellants should have been able to demonstrate it.”
Ms. Roithmayr says there is case law precedent in both directions on this matter, and the ultimate decision may hinge on a legal technicality that the public may find difficult to grasp.
Another wrinkle which could complicate this case is the California gubernatorial election which comes on Nov. 4, a month before the Ninth Circuit begins to hear the case. Candidate Meg Whitman, has supported gay civil unions but not gay marriage. Since it’s possible she could win the election – but not take office until January – it’s another unknown how the court would respond.
“A new governor could change this, but she would have to act quickly,” says Roithmayr. “The court might go ahead and hear arguments but not make its decision immediately. My guess is that they wouldn’t close the window if the governor decided to act.”
Strader says that pro-Prop. 8 groups are wrong to be delighted over the Ninth Circuit’s decision.
“I think if they are overly optimistic from this, they are misreading the ruling,” says Strader. “It will be a different panel of judges which will ultimately decide this.”