Prop. 8: Gay marriage still on hold in California, says Ninth Circuit

Until its fate is decided in state and federal appeals courts, California's Proposition 8 will prevent same-sex couples from marrying in California.

That is the March 23 decision of three judges on the Ninth Circuit Court of Appeals, after they were asked to lift a stay on last year’s ruling that Prop. 8 is unconstitutional. Prop. 8 is a voter initiative that limits marriage to heterosexual couples, passed by referendum in 2008 and declared unconstitutional by a district court in 2010.

Gay-rights advocates say they had hoped that same-sex couples could marry while appeals progressed, especially as the Ninth Circuit said last autumn that those appeals would be put on a legal fast track – but that track has taken a detour. “We think the court made a mistake, because there is no direct harm to others if same-sex couples are allowed to marry, but there is direct harm to us by not getting married,” says Geoff Kors, executive director of Equality California.

The California Supreme Court indicated in February that it will not open hearings before September on the key question of standing – i.e., who can make the appeal, since the original defendants, the governor and attorney general, have refused to continue defending Prop. 8.

"The Ninth Circuit did the right thing by rejecting the attempt to suspend Prop. 8 and allow same-sex marriage, contrary to the vote of the people, long before the legal challenge against Prop. 8 reaches a final decision,” Andy Pugno, general counsel for ProtectMarriage.com, the official proponents of Prop. 8, said in a statement.

Most legal scholars seem to agree that the Ninth Circuit acted reasonably under the circumstances. “The Ninth Circuit has decided, out of deference to state law, that it should wait for the input of the California Supreme Court before it decides the case,” says Kevin Johnson, Dean of the University of California – Davis Law School.

In his experience, such timing is normal, he says. “While everyone is eager for resolution of the case, it is important that the Court take the time necessary to fully consider and correctly apply and interpret the relevant law.”

Had the court ruled to lift the stay, "thousands of couples would have immediately gotten married," says Erwin Chemerinsky, Dean of the University of California – Irvine Law School. “If Prop. 8 is ultimately upheld, there would be the question of what to do about those marriages. This is simplest in terms of preserving the status quo. But as a matter of law, it is harder to justify. A stay should be issued only if the party seeking it has a substantial likelihood of ultimately prevailing and I am skeptical of that.”

Pro-Prop 8. advocates highlighted the pragmatism of the court's ruling. “The consequences of getting a reversal and having same-sex couples already married are pretty enormous,” says Chris Gacek, senior fellow at the Family Research Council. The ruling "deals with the realities of the problems of letting open the flood gates – and then having to undo it."

Gay rights groups say they are hurt and outraged. Some activists have vowed to expand their tactics with renewed vigor. “The implication of this ruling is clear: We cannot wait on the courts, which in America should be the guarantor of equal treatment under the law for all Americans,” says Tom Watson, co-founder and Board Chair of Love Honor Cherish. “It is time for all those who believe that our country’s promise of equality extends to lesbian and gay Americans to seek to overturn the state bans on same-sex marriage, whether in state legislatures or at the ballot box, as well as to overturn the so-called Defense of Marriage Act in Congress.”

Others look at the immediate impact of the ruling on gay and lesbian couples in California. “The Ninth Circuit’s decision is disappointing because there are thousands of same-sex couples all over California who want to get married and can’t,” says James Esseks, Director of the ACLU’s Lesbian, Gay, Bisexual, Transgender & AIDS Project.

“But the real, lasting importance of this case," he says, "is that proponents of Prop. 8 had the chance to explain how traditional marriage is harmed by letting same sex couples marry – and they couldn’t do it."