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Appeals Court Stays Gay Marriage in CA

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By Tanya Roth, Esq. on August 17, 2010 12:41 PM

The 9th Circuit Court of Appeals has put the brakes on the journey of the suit over Prop 8, California's law banning gay marriage. On August 16, a three judge panel granted the motion for a stay by proponents of the law. This means that same sex marriages in the state will be on hold at least until the court of appeals hands down its own decision in the case.

Yesterday, the court gave no reason in its two-page Order as to why it is reinstating the stay. However, the court did decide to speed up the process of the appeal. The parties now have until early fall to ready their court briefs, with the first brief from the appellants (proponents of the law) due in September. The case itself will be heard before the 9th Circuit Court of Appeals on December 6. This may seem like a very slow pace, but in terms of appellate court decisions, it has moved into the fast lane.

What's next? In their appeal, proponents of the law will have to not only make their case to the appellate court, but will have to argue to the court that they have a right to be there at all. In his Order denying the proponent's motion for a stay, District Court Judge Vaughn Walker questioned whether the proponents had a right to take their case to the appeals court. The appeals court would like to consider the issue further, and has directed the proponents to brief the issue to the court. (Stay Order, p.2)

The actual defendants in the case of Perry v. Schwarzenegger, as the name suggests, are those that are responsible for enforcing the law, for example, Arnold Schwarzenegger in his capacity as governor. As the Los Angeles Times points out, the governor and the state Attorney General, Jerry Brown, agree with the decision finding the law unconstitutional written by Judge Walker, and have already said they would not appeal it. The question then becomes, do the proponents of the law have the standing to appeal it themselves?

These questions and the question of if, and possibly when, gay marriage might resume in California will be addressed by the appeals court in its decision. However, the next step will likely be that the appellate decision, whatever it might be, will in turn be appealed to the United States Supreme Court. That might be the end of the road for the Prop 8 case.

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