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No Same-Sex Marriages During Prop. 8 Appeal

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By Stephanie Rabiner, Esq. on March 24, 2011 1:01 PM

In August, the 9th Circuit issued a stay in the Proposition 8 case, denying the plaintiff's request for the state to resume same-sex marriages.

Last month, attorneys for the plaintiffs in the same-sex marriage appeal requested that the court lift the stay, making way for marriages to resume.

The 9th Circuit yesterday declined to do so, stating that the couple had not met its burden under the law "at the time" of filing. Given the state of the gay marriage appeal, it looks like same-sex marriages won't be resuming for quite some time.

At this point, the court has decided that it wishes to wait until it has all relevant information before it rules on the merits of the case. This likely won't happen until early next year.

Back in January, when the 9th Circuit first issued a substantive ruling on the same-sex marriage appeal, it concluded that there was a state law question of standing. It thus requested that the California Supreme Court provide advice on whether state law grants proponents of the law standing given the fact that the governor refuses to defend it.

The California court agreed and is currently looking into the issue according to the San Francisco Chronicle. But it has scheduled oral arguments in September, after which it has 90 days to issue an opinion.

This means that the 9th Circuit won't have its answer until December, meaning that it won't reconsider the gay marriage appeal until after its winter recess.

There, however, is some hope in the order. By stating that the plaintiffs in the same-sex marriage appeal are unable to meet their burden "at this time," the court is indicating that it has not yet made a decision on the constitutional issues. It is also leaving the door open for another request to lift the stay should circumstances change.

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