LISA KEEN | Keen News Service
A three-judge panel of the 9th Circuit U.S. Court of Appeals issued an order Monday granting Yes on 8’s request for a stay of Judge Vaughn Walker’s ruling that Proposition 8 is unconstitutional. The appeals court panel also ordered, without being asked, that Yes on 8’s appeal of Walker’s ruling in Perry v. Schwarzenegger be addressed by the court on an expedited basis.
The panel said it would hear arguments on appeal during the week of Dec. 6, as well as arguments concerning whether Yes on 8 has legal standing to press the appeal.
The two-page order is a disappointment to many same-sex couples in California who were hoping that they would be able to obtain marriage licenses as soon as Judge Walker’s stay expired — at 5 p.m. Pacific time on Wednesday.
“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,” said Ted Olson, one of the lead attorneys for plaintiffs challenging Proposition 8.
Olson, one of the most prominent conservative attorneys in the country, launched the high-profile challenge of California’s voter-approved constitutional ban on same-sex marriage with liberal attorney icon David Boies. Walker, chief judge of the U.S. District Court for Northern California (San Francisco), heard three weeks of testimony by the plaintiffs and Proposition 8 supporters in January.
In a dramatic 136-page ruling on Aug. 4, Walker declared the same-sex marriage ban in the state constitution violates the U.S. Constitution’s guarantees of equal protection and due process. Walker agreed to stay — or delay enforcement — of his decision until Aug. 18, giving the 9th Circuit time to decide whether to grant a more extended appeal.
Evan Wolfson, who was a lead attorney on the first same-sex marriage case — in Hawaii in 1996 — called the 9th Circuit panel’s decision to continue Walker’s stay “disappointing.”
“But there are many twists in the road to justice,” said Wolfson, “and we are encouraged by the court’s setting a fast pace for the appeal, revealing that the judges understand how important a quick end to the exclusion from marriage is to gay couples, their loved ones, and all Americans who believe in equality under the law.”
The 9th Circuit panel includes two Clinton appointees — Judges Sidney Thomas and Michael Hawkins — and one Reagan appointee, Edward Leavey.
The panel set Sept. 17 as the date Yes on 8’s initial argument brief is due.
The response brief from the Ted Olson-David Boies legal team challenging Proposition 8 is due Oct. 18. And Yes on 8 may reply to plaintiffs’ brief by Nov. 1.
Monday’s order means the same-sex marriage ban will stay intact at least until December, when the 9th Circuit will hear arguments on both the issue of Yes on 8’s standing to appeal and, perhaps, on the merits of Walker’s decision.
Meanwhile, on the East Coast, where U.S. District Court Judge Joseph Tauro ruled — in two separate cases — July 9 that the ban on federal benefits to same-sex couples is unconstitutional, the clock is still ticking down the 60 days the U.S. Department of Justice has to appeal the decisions to the 1st Circuit U.S. Court of Appeals.
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