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August 27 , 2010

California marriage ruling is appealed

Court sets fast date of December 6 but extends stay until then

San Francisco--The Ninth Circuit Court of Appeals, which will be hearing the challenge to Judge Vaughn Walker’s ruling in favor of same-sex marriage, reinstituted a stay of his ruling, putting off marriages in California until the appeal is heard on December 6.

The stay came in response to a motion from the organization that put forward Proposition 8, the state constitutional amendment barring same-sex marriage.

Walker initially stayed his August 4 ruling for two days, then extended that to August 18, leading many to believe that California gay and lesbian couples could again marry on that date. But the appeals court extended the stay two days before the deadline.

Both Gov. Arnold Schwarzenegger and Attorney General Jerry Brown, who were named as defendants in the suit against Prop. 8, refused to defend the amendment and urged the original stay against the ruling to be lifted so marriages could resume immediately.

The judges did not explain their decision, but ordered an explanation from the supporters of Proposition 8 as to why they have standing to defend the measure when the state itself will not.

As a constitutional amendment, it should have fallen to the state’s attorneys to defend it in court. However, Brown refused to do so and the original proponents of the measure asked for defendant-intervenor status.

The appeals court, in previous cases, has refused to grant standing to private individuals and organizations when the state will not act.

Three judges of the Ninth Circuit Court of Appeals expedited the appeal, slating it for the week of December 6 before a random panel of three judges from the court.

“I think the court realized the importance of this case and expedited it,” Geoffrey Kors of Equality California told the San Francisco Chronicle. “Normally, the Ninth Circuit court takes a year and a half to decide an issue, but this one they’ve indicated they want done in months.”

An attorney for Prop. 8’s creators said in a filing that they had standing to defend the amendment since the state had not done so. However, San Francisco City Attorney Dennis Herrera pointed to Judge Walker’s opinion that they have no standing to appeal, and he believes that the appellate court is paying a great deal of attention to the matter.

Imperial County, in rural southeastern California, has also asked to defend Prop. 8 on appeal, in case the judges rule that the non-governmental proponents do not have standing.

Whichever side loses the three-judge appeal can then ask for a hearing before the full appellate court. Regardless of who wins those, the case will likely make it to the Supreme Court, which will then decide whether or not to take the case. It will likely not make it to the high court until after October 2011.

Vaughn Walker, the federal judge who ruled that the amendment is unconstitutional, is widely reported to be gay, but will not discuss it. He first rose to national attention as an attorney representing the United States Olympic Committee in a suit against the Gay Olympics and its founder Tom Waddell, over the word “olympics.” They won, and the event is now known as the Gay Games.

LGBT advocates and Democratic leaders opposed his nomination to the federal bench after his name was put forward by Ronald Reagan. It was another two years before Walker finally was confirmed to the bench.

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