A federal appeals court has denied a request to allow same-sex marriages to resume in California while the lawsuit challenging Proposition 8 is decided. Chris Geidner at Metro Weekly reports:
In a brief order issued today, the U.S. Court of Appeals for the Ninth Circuit denied the plaintiffs’ request to vacate its earlier stay order, which is keeping Proposition 8 in effect during the appeal of the Perry v. Brown challenge to the marriage amendment.
The order, from the three judges hearing the appeal:
“Having considered all of the factors set forth in Nken v. Holder, 129 S. Ct. 1749, 1756 (2009), 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, 472 F.3d 1097, 1101 (9th Cir. 2006), we deny Plaintiffs’ motion at this time.”
The plaintiffs had made the request of the Ninth Circuit to lift the stay shortly after the Department of Justice announced that it would no longer be defending Section 3 of the Defense of Marriage Act. The lawyers for the plaintiffs wrote, “The conclusion of the United States that heightened scrutiny applies to classifications based on sexual orientation is unquestionably correct. Proposition 8 cannot survive the requirements of heightened scrutiny because its invidious discrimination against gay men and lesbians could not conceivably further an important government interest. Indeed, proponents have made no serious attempt to defend Proposition 8 under that exacting standard.”
The ongoing consideration by the California Supreme Court of the certified question sent to it by the Ninth Circuit in the Perry case, which is delaying final resolution of the case by the Ninth Circuit, was an additional reason why the plaintiffs had requested that the stay be lifted. The California Supreme Court is considering whether the proponents of Proposition 8 have any “particularized interest” in the case or any legal right under California law to defend the proposition in court.