Stay of Prop 8 ruling prompts protests on a day when gay marriages would have resumed

Nine protesters were arrested Thursday morning following a sit-in at the San Diego County Clerk’s Office, where a gay couple requested a marriage license. The couple had scheduled their appointment prior to a federal appeals court’s decision earlier this week to put same-sex marriages on hold until at least December. Sheriff’s deputies eventually showed up in full riot gear (shown above) to arrest the nine protesters, who are members of the San Diego Alliance for Marriage Equality. More pics from the protest can be found here. According to the San Diego Gay & Lesbian News, supporters have called an emergency rally for 5 p.m. outside the jail to protest the arrests and demand the activists’ immediate release.

Meanwhile, up the road in West Hollywood, a rally is planned for 6 p.m. Thursday night at Santa Monica Blvd. and San Vicente Blvd. From the Facebook event page:

Although Judge Walker’s decision was a victory for Prop 8 opponents, the fight is NOT over. Do not let that victorious feeling make you complacent! Let it be known that we will remain vigilant and active until marriage equality is restored in California!

UPDATE: Here’s some video of the San Diego protest:

—  John Wright

BREAKING: Appeals court grants stay of Prop 8 ruling; gay marriages won’t resume Wednesday

A federal appeals court reportedly has granted a stay of Judge Vaughn Walker’s ruling declaring Proposition 8 unconstitutional. This means same-sex marriages will not resume in California on Wednesday, the deadline for Walker’s previous stay to expire. From the National Center for Lesbian Rights at about 6 p.m. Dallas time on Twitter: “BREAKING: 9th Cir grants stay but puts case on expedited schedule & orders parties to address whether #Prop8 proponents have standing.”

This is a developing story. Stay tuned to Instant Tea for updates.

UPDATE: Some early analysis of the appeals court’s decision courtesy of the Courage Campaign:

Three things:

First, and drastically most importantly, the Court granted the stay. Consequently the thousands of couples who were waiting for the day of equality will have to wait at least a few more months until December.

Second, the Court wants this case to be resolved quickly. Appellants’ opening brief is due in just a month and the hearing will happen on December 6th. This is lightning quick for a Federal Court of Appeals, and it’s a very good sign. The Court understands that this case is important, and it doesn’t want it to linger.

Third, the Court specifically orders the Prop 8 proponents to show why this case should not be dismissed for lack of standing. Here’s a discussion of the standing issue. This is very good news for us. It shows that the Court has serious doubts about whether the Appellants have standing. Even better, the Court is expressing an opinion that its inclination is that the case should be dismissed. That being said, the panel that issued this Order (the motions panel) is not the same panel that will hear that case on the merits. The merits panel will be selected shortly before December 6th and we don’t know the three judges who will be on the merits panel. But this is a very good sign that the appeal could be dismissed on the ground of standing alone.

UPDATE NO. 2: Here’s a statement from the American Foundation for Equal Rights, which is representing the same-sex couples challenging Prop 8:

Today the United States Court of Appeals for the Ninth Circuit set a highly expedited schedule for briefing and argument of proponents’ appeal from the district court’s August 4, 2010 decision striking down California’s Proposition 8 as an unconstitutional violation of the rights of gay and lesbian citizens to due process and equal protection of the law under the Fourteenth Amendment, and it granted proponents’ request to stay the judgment of the district court’s order while the appeal is decided. This means that although Californians who were denied equality by Proposition 8 cannot marry immediately, the Ninth Circuit, like the district court, will move swiftly to address and decide the merits of Plaintiffs’ claims on their merits. Today’s order can be found here:  http://www.equalrightsfoundation.org/legal-filings/9th-circuit-ruling-on-motion-for-stay-pending-appeal/

“We are very gratified that the Ninth Circuit has recognized the importance and pressing nature of this case and the need to resolve it as quickly as possible by issuing this extremely expedited briefing schedule. As Chief Judge Walker found, Proposition 8 harms gay and lesbian citizens each day it remains on the books.   We look forward to moving to the next stage of this case,” said Attorney Theodore B. Olson.

“Today’s order from the Ninth Circuit for an expedited hearing schedule ensures that we will triumph over Prop. 8 as quickly as possible. This case is about fundamental constitutional rights and we at the American Foundation for Equal Rights, our Plaintiffs and our attorneys are ready to take this case all the way through the appeals court and to the United States Supreme Court,” said Chad Griffin, Board President, American Foundation for Equal Rights.

UPDATE NO. 3: We’ve posted a full story here.

—  John Wright

AG Brown, couples urge speedy return to gay marriages

PAUL ELIAS and LISA LEFF  |  Associated Press

SAN FRANCISCO — The attorneys who successfully sued to strike down California’s same-sex marriage ban have joined state Attorney General Jerry Brown in urging a federal appeals court to quickly allow gay marriages to resume in the state.

Theodore Olson and David Boies, the high-profile lawyers representing two couples, told the appeals court that same-sex couples are being hurt every day Proposition 8 is enforced and should not be denied their civil rights while the ban’s sponsors pursue an appeal of this month’s decision overturning the 2008 measure that was approved in a referendum.

“Indeed, the only harm at issue here is that suffered by Plaintiffs and other gay and lesbian Californians each day that Proposition 8′s discriminatory and irrational deprivation of their constitutional rights remains in force,” the lawyers argued in a filing late Friday, Aug. 13.

Brown, who is the Democratic nominee for governor, said in a separate filing that there was no reason for the 9th Circuit to grant the emergency stay request because state and local agencies would suffer no harm by being required to sanction same-sex marriages. County clerks across the state already are gearing up to do so next week, he said.

The swiftly drafted legal papers came in response to efforts by same-sex marriage opponents to get the 9th U.S. Court of Appeals to block a lower court judge’s ruling striking down Proposition 8 as unconstitutional from taking effect this week. If the 9th Circuit refuses to intervene, it would clear the way for same-sex couples to marry starting after the close of business Wednesday, Aug. 18.

Protect Marriage, the coalition of religious and conservative groups that sponsored Proposition 8, has appealed U.S. District Judge Vaughn Walker’s Aug. 4 ruling that found the voter-approved law unconstitutional. After Walker said on Thursday, Aug. 12 that he planned to finalize his ruling on Wednesday at 5 p.m., the group’s lawyers asked the 9th Circuit to prevent any gay marriages while the appeal is pending.

They argued the appeals court should grant an emergency stay “to avoid the confusion and irreparable injury that would flow from the creation of a class of purported same-sex marriages.”

Depending on how the 9th Circuit rules, same-sex couples could get married in California as early as next week or they would have to wait while the appeal works its way through the court and potentially the U.S. Supreme Court as well.

Walker, however, has expressed doubts over whether Protect Marriage has the right to challenge his ruling if neither the attorney general nor the governor elect to do so. Both officials refused to defend Proposition 8 in Walker’s court and have since said they see no reason why gay couples should not be able to get married now.

Although he allowed the group to intervene in the trial, the judge said the appellate court would have to make its own determination that same-sex marriage opponents would be injured if gay couples could wed, a claim Walker explicitly dismissed in his decision invalidating Proposition 8.

The ban’s backers addressed the potential for such a roadblock in their emergency stay request, saying California’s strong citizen initiative law permits ballot measure proponents to defend their interests if state officials will not.

“Proponents may directly assert the state’s interest in defending the constitutionality of its laws, an interest that is indisputably sufficient to confer appellate standing,” they said.

Theodore Boutrous, a lawyer with the legal team representing same-sex couples, said that keeping Protect Marriage from moving forward with an appeal was not necessarily the top priority of the plaintiffs.

“We believe that Chief Judge Walker’s ruling last week on the merits provides a powerful record on appeal, and we want the appellate courts to address the merits of Proposition 8,” Boutrous said. “The standing issue that Chief Judge Walker identified provides another potential weapon in our arsenal that will be part of the appellate arguments.”

California voters passed Proposition 8 as a state constitutional amendment in November 2008, five months after the California Supreme Court legalized same-sex unions and an estimated 18,000 same-sex couples already had married.

Five states — Massachusetts, Connecticut, Vermont, New Hampshire and Iowa — and the District of Columbia have legalized same-sex marriage. New York and Maryland recognize those marriages even though same-sex couples can’t wed within their borders. However, the federal government doesn’t recognize same-sex marriage, nor do the vast majority of states.

—  John Wright