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The Ban is Back: Appeals Court Stops CA Gay Marriages (Again)

By L.K. Regan

At the eleventh hour, the Ninth Circuit Court of Appeals has stepped in to reinstate the ban on gay marriages in California. Despite the hundreds of gay couples eagerly awaiting a potential opening for legal marriages later this week, the appeals court has chosen to put the lid back on gay weddings, at least for the next several months.

Last week, Judge Vaughn R. Walker, having ruled the California gay marriage ban (Proposition 8) unconstitutional, revisited the stay that he himself had temporarily placed on his ruling. On the one hand, Judge Walker found that there were no good grounds for perpetuating a ban on gay marriage via a stay of what he considers to be a just and fair ruling. On the other hand, he left the stay in place for a week to allow time for a higher court to step in, should it choose to do so. The result of this confusing ruling was the hope that the higher court might choose not to intervene, or might wait until after Judge Walker's August 18th deadline, thus allowing a window for gay marriage, however brief. Sadly, the Ninth Circuit has closed that window.

A three-judge panel of the Ninth Circuit Court of Appeals issued an emergency stay of Judge Walker's original ruling eviscerating Proposition 8. A different three-judge panel will actually hear the appeal of Judge Walker's decision, an appeal which is widely expected to wind up at the U.S. Supreme Court in the next couple of years. For California's gay couples who had hoped to join the ranks of the 18,000 same-sex couples married after California's Supreme Court legalized gay marriage and before the passage of Prop. 8, this is simply terrible news. Marcia Davalos of Los Angeles, who had hoped to marry her partner Laurette Healey, told the Associated Press, "We were getting excited and then all of a sudden it's like, 'Ugh.' It's a roller-coaster." To have the opportunity to marry repeatedly dangled before them, only to be ripped away, has been indescribably painful to many gay couples.

Not all of the news is bad, however. The justices warned the Prop. 8 defenders that they would need to come to court ready to explain themselves, and include in their briefing "a discussion of why this appeal should not be dismissed for lack of [standing]." In other words, with the State of California refusing to defend Proposition 8 (a highly unusual occurrence), it is not clear that the Prop. 8 defenders even have the right to bring the case to court. As Sharon Minter, legal direction of the National Center for Lesbian Rights, told the AP, "The delay is excruciating and heartbreaking I know for the couples, but the ruling did include a significant victory by expediting the case and by highlighting that the proponents have a heavy lift to show they even have the right to bring an appeal." And, as plaintiffs' attorney Ted Boutrous told The Advocate, "had the stay not been entered, it may have been harder to get such an expedited briefing schedule in the case."