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Back to Section One | Back to Arts & Entertainment
posted Friday, April 1, 2011 - Volume 39 Issue 13
National News
Section One
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National News

by Rex Wockner - SGN Contributing Writer

Ninth Circuit refuses to lift stay of Prop 8 strikedown
The 9th U.S. Circuit Court of Appeals on March 23 refused a request from the American Foundation for Equal Rights and lawyers Ted Olson and David Boies that it lift its block on the August 2010 federal district court ruling that struck down Proposition 8.

U.S. District Judge Vaughn Walker had issued an injunction barring further enforcement of Prop 8 after finding that it violates the U.S. Constitution. The 9th Circuit, however, quickly 'stayed' Walker's injunction, and his ruling has been tied up on appeal since.

Prop 8, passed by voters in November 2008, amended the California Constitution to halt same-sex marriage, which was legal in the state at the time.

Olson and Boies say the appeal process is taking too long, especially given a lengthy delay introduced into the case in February when the 9th Circuit punted to the California Supreme Court the question of whether the people who are appealing Walker's ruling - the folks who put Prop 8 on the ballot - actually have any right, under California law, to appeal.

None of the people who are defendants in the case - including Gov. Jerry Brown and Attorney General Kamala Harris - have an interest in appealing Walker's ruling or defending Prop 8. As a result, if the Prop 8 supporters are found to have no standing to appeal, then the 9th Circuit won't hear the case, Walker's ruling would take effect, and same-sex couples could marry again in California - although the question of standing also could be appealed to the U.S. Supreme Court.

'The stay was originally ordered with the understanding that the 9th Circuit would rule swiftly on the case before it,' said Olson. 'Now that the issue of the [Prop 8] proponents' standing to appeal has been referred for analysis by the California Supreme Court, substantial additional, indefinite and unanticipated delays lie ahead. It's unreasonable and decidedly unjust to expect California's Gay and Lesbian couples to put their lives on hold and suffer daily discrimination as second-class citizens while their U.S. District Court victory is debated further.'

The 9th Circuit apparently was unswayed by that line of reasoning, though it did not explain why.

On March 23, the judges ordered: 'Having considered all of the factors set forth in Nken v. Holder &. and all of the facts and circumstances surrounding Plaintiffs' motion to vacate the stay pending appeal, as well as the standard for vacatur set forth in Southeast Alaska Conservation Council v. U.S. Army Corps of Engineers &. we deny Plaintiffs' motion at this time.'

It was unclear if the phrase 'at this time' was an indication that the court might see the matter differently at some future time.

For now, LGB Californians will wait for the California Supreme Court's answer to the 9th Circuit's question, which will be taken into consideration by the 9th Circuit judges when they decide whether to give the Prop 8 supporters federal standing to appeal and serve as defendants. The California Supreme Court has said it won't hear oral arguments on the matter until September at the earliest.

Equality California said it was 'profoundly disappointed' by the 9th Circuit's refusal to let Gays marry while the appeal moseys along.

'Today's ruling is a major setback for same-sex couples and their families who must continue living every day in legal limbo without the basic freedoms and protections guaranteed to them by our nation's Constitution,' said Executive Director Geoff Kors. 'Every day same-sex couples are denied the freedom to marry, their families suffer significant harm.'

National Center for Lesbian Rights Legal Director Shannon Minter also was distressed by the development.

'We are deeply disappointed by the court's failure to lift the stay,' Minter said. 'A federal court held that Prop 8 is unconstitutional and that its continued enforcement causes serious harm to same-sex couples and their children. Without explanation, the 9th Circuit's ruling today allows that harm to continue. Every day that Prop 8 remains in effect, the state of California is harming families, sending a devastating message to LGBT youth, and perpetuating violence and discrimination against LGBT people.'

Stats: 42% of Americans live in states that recognize Gay couples
Equality Matters reports that 42 percent of Americans now live in states that recognize same-sex couples' relationships, and that 30 percent live in states where marriage, civil unions or domestic partnerships give same-sex couples the same state-level rights as married people.

All Gay couples, however, still are denied the more than 1,100 federal rights and benefits of marriage, because of the Defense of Marriage Act.

'[D]espite the best efforts of anti-Gay groups and politicians, the LGBT community has made rapid progress across the United States,' Equality Matters said. 'As public support for marriage equality continues to rise, it's only a matter of time before every American has the right to have their loving commitments recognized and respected by their state and federal governments.'

With assistance from Bill Kelley

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