Ninth Circuit: Marriages on Hold

Without explanation, the U.S. court of appeals for the ninth circuit has granted a stay in the Proposition 8 case, yet again delaying the possibility of marriages for same-sex couples seeking to wed in California.

The three-judge panel granted Prop. 8 supporters the stay of U.S. district judge Vaughn Walker's decision in the case, but it also expedited arguments in the appeal, which are scheduled for the week of December 6 in San Francisco.

Chad Griffin, copresident of the American Foundation for Equal Rights, which organized the legal challenge to the 2008 ballot measure, told The Advocate his team will not appeal the ninth circuit's Monday order to the U.S. Supreme Court.

"Today's order from the ninth circuit for an expedited hearing schedule ensures that we will triumph over Prop. 8 as quickly as possible," Griffin said in a statement. "Our Plaintiffs and our attorneys are ready to take this case all the way through the appeals courts to the United States Supreme Court."

Jennifer C. Pizer, Marriage Project director for Lambda Legal, said the ninth circuit's two-page ruling should not be read as a "substantive disagreement" with the merits of the case. "What this indicates is that the ninth circuit is going to give this methodical consideration," she said. "They see the weight of the issues and have not disagreed with any of Judge Walker's analysis."

The ninth circuit's decision to block marriages for same-sex couples also does not mean it has ruled on whether Prop. 8 supporters have actual standing to appeal Walker's decision.

The panel, composed of judges Edward Leavy, Michael Daly Hawkins, and Sidney Runyan Thomas, wrote that Prop. 8 proponents must include in their briefs to the court "a discussion of why this appeal should not be dismissed for lack of [standing]."

A spokesman for California attorney general Jerry Brown said his office would also not appeal the ruling, Metro Weekly reported late Monday.

Earlier this month Walker ruled that Prop. 8 violated the U.S. Constitution's guarantees of equal protection and due process. Many legal observers had expected the ninth circuit to deny a request for a stay in the case on well-established legal precedent.

"We are very cognizant of the fact that many people wanted to get married as soon as possible, and that's why we so strongly opposed the stay," plaintiffs' attorney Ted Boutrous, who argued the case alongside lead attorneys Ted Olson and David Boies, told The Advocate. "But at the same time, had the stay not been entered, it may have been harder to get such an expedited briefing schedule in the case."

Another legal source, who declined to be named, said that had the ninth circuit ruled against a stay, an appeal by Prop. 8 supporters to the Supreme Court could have been harmful to Olson and Boies's highly strategical case. "When you have an important constitutional issue, as is the case here, you don't want the first time it comes before the justices to be a high-pressure, high-speed situation," the source said. "You'd rather have it come on a full record and on a schedule where the court has time to consider the issues carefully.

"You don't want this hitting their schedule when it's summer and they're on vacation," the source added.