Monday August 16, 2010

Federal Appeals Court Intervenes in Prop. 8, Halts California Gay ‘Marriages’

By Peter J. Smith and Kathleen Gilbert

Updated 9:13pm EST

SAN FRANCISCO, August 16, 2010 ( – The 9th Circuit U.S. Court of Appeals intervened in the battle over Proposition 8 Monday afternoon, and gave an order preventing California officials from issuing marriage licenses to homosexual couples until they can hear the case.

The stay from the three judge panel of the appeals court blocked Chief U.S. District Court Judge Vaughn Walker’s decision overturning Proposition 8, the voter-approved state constitutional amendment defining marriage as between one man and one woman.

Walker, one of three known openly homosexual judges in the federal judiciary, ruled in the Perry v. Schwarzenegger case that banning same-sex “marriage” violated the equal protection and due process clauses of the 14th Amendment to the U.S. Constitution.

Walker issued a district order Thursday that would have allowed same-sex “marriages” in California to resume August 18 at 5 p.m. Walker imposed only a temporary stay on his ruling, so that the interveners in the case, ProtectMarriage, which sponsored the embattled amendment, could file an appeal with the circuit court.

The 9th Circuit Court’s order expedites review of Proposition 8, and sets the hearing for appeal during the week of December 6 in San Francisco. However, the judges also ordered attorneys for both sides to submit briefs on a tight schedule: opening brief is due September 17, answering brief is due October 18, while the reply brief is due November 1.

The Court also intends to resolve the question of whether pro-family attorneys representing ProtectMarriage actually have standing to represent the amendment before the federal appeals court.

“In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing,” reads the order, referencing Arizonans For Official English v. Arizona [520 U.S. 43, 66 (1997)].

The Governor of California, Arnold Schwarzenegger, and Attorney General Jerry Brown are named in the case as defendants, but both declined to defend the law and embraced Walker’s decision. Therefore, the Alliance Defense Fund and other attorneys that represented Prop. 8 during Walker’s 13-day trial have to convince the court that they can actually represent the state of California in an appeal, when the named defendants have refused to take up the case.

The issue of standing may be resolved by the California November election if the incoming attorney general and governor are willing to defend Prop. 8., but true marriage supporters would have to wait until they take office in January.

If the current interveners are determined by the court not to have standing, then same-sex “marriage” would be legal in California, and the issue would not go to the U.S. Supreme Court. Should it be accepted, the high court’s swing justice, Anthony Kennedy, would likely be the deciding vote on whether to uphold the ban or create a national right to same-sex “marriage.”

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