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Wednesday, April 7, 2010 as of 11:14 AM ET

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Lee Ross

Supreme Court

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California’s Gay Marriage Ban Extended

August 16, 2010 - 7:18 PM | by: Lee Ross

UPDATE:

One of the lawyers representing the gay marriage proponents in the Prop 8 case tells Fox News they will NOT appeal Monday’s stay order to the Supreme Court.

Here is the statement from lawyer Theodore J. Boutrous, Jr.,

“We are gratified that the Ninth Circuit has recognized the importance and pressing nature of this case by issuing this extremely expedited briefing schedule. This approach is one that we proposed as an alternative if the Court decided to grant a stay. As Chief Judge Walker found, Proposition 8 harms gay and lesbian citizens each day it remains on the books. We look forward to moving quickly to brief and argue the merits of this case.”

California’s ban on gay marriage will continue until at least December according to a court order issued late Monday.

The decision of a three judge panel of the Ninth Circuit U.S. Court of Appeals means the Golden State’s gay marriage ban will remain in effect until at least early December when oral arguments are scheduled.

District Court Judge Vaughn Walker’s ruling earlier this month invalidating the California law, known as Prop 8, was a huge victory for gay rights supporters. Monday’s ruling puts that decision on hold but there’s a clear indication from the Ninth Circuit that there may be a serious problem with the appeal.

Monday’s two page order specifically directs Prop 8 supporters to address whether they have the legal ability to challenge Judge Walker’s decision. “In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing,” the order says.

Standing is a legal doctrine with roots in the Constitution’s Article III that requires a plaintiff to show harm or injury. “Essence of standing is that no person is entitled to assail the constitutionality of an ordinance or statute except as he himself is adversely affected by it,” explains Black’s Law Dictionary, an authoritative legal guide.

In December, the Ninth Circuit will have to determine if Prop 8 supporters will be harmed if Walker’s ruling takes full effect. In other words, will they be injured if gays are allowed to marry? The measure’s supporters argue that state law precedents give them the standing right to challenge Walker’s decision. “California courts have repeatedly allowed proponents to intervene to defend initiatives they have sponsored,” lawyers for the Prop 8 defenders argued in their brief to the Ninth Circuit.

But not everyone shares that view.

Lawyers for the gay couples who are defending Walker’s ruling point to a 1997 Supreme Court decision which cast “grave doubts” on the courtroom rights of ballot initiative supporters. They argue that Prop 8 backers lack standing to file an appeal and note that none of the state’s key lawmakers (i.e. Governor Arnold Schwarzenegger or Attorney General Jerry Brown) who normally have standing to file suit have done so.

“Proponents cannot prosecute this appeal on their own because, as the district court found, ‘nothing in the record shows proponents face the kind of injury required for Article III standing,” lawyer Ted Olson noted last week.

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