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


Claudia Cowan

San Francisco, CA


CA’s Gay Marriage Yo-Yo

August 17, 2010 - 11:01 AM | by: Claudia Cowan

Lawyers fighting for the resumption of gay marriage in California are trying to make the best of the latest legal loss, after a 3-judge panel of the 9th Circuit Court issued an emergency stay on same-sex weddings pending an appeal. They say they’re gratified the higher court has recognized “the importance and pressing nature” of this case, and is moving to get the matter heard as soon as possible. The briefing schedule has been expedited, and oral arguments are set to begin the week of December 6th, which is pretty quick by legal standards. As Geoff Kors, executive director of Equality California points out, “the 9th Circuit Court normally takes up to a year and a half to decide an issue, but this one they’ve indicated they want done in months.”

But for scores of gay and lesbian couples who hoped to be able to tie the knot as soon as tomorrow afternoon, the new stay is a big disappointment. Many are having to cancel weddings. San Francisco Mayor Gavin Newsom says he fears some couples may not outlive the final ruling, either from the Circuit Court or -possibly- the U.S. Supreme Court. Attorney General Jerry Brown is also expressing concern, saying gay couples are continuing to have their civil rights violated each day Prop. 8 remains in effect.

On the other side, proponents of Prop. 8, who lost the last round in court, are pleased to win this one. They’d argued gay marriages would be happening under “a cloud of uncertainty,” and that the result could be legal chaos. The lawyers fighting on behalf of the voter-approved ban say the court acted responsibly, by preserving the status quo while the appeals move forward.

But the fact remains, the whole case could be “dead on arrival” if the appellate court rules those proponents don’t have legal standing to defend the ban moving forward. Federal Judge Vaughn Walker allowed the authors of Proposition 8 to defend the law at trial, but they’re not really the ‘defendants’ since they don’t enforce the law. The state is the defendant here.

In his ruling, Judge Walker said an appeal may hinge on getting Governor Arnold Schwarzenneger or Attorney General Jerry Brown to join the defense team. The chances of that happening are slim to none, since they’ve both filed motions calling for same-sex marriage to resume right away.

Imperial County near San Diego is hoping to intervene as a defendant, and the 9th Circuit is considering that request. But without a county, or some state entity on board, it’s possible the whole case could end on a technicality, because the proper defendants are unwilling to challenge the verdict.

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