Gay-Marriage Decision Foreshadows Long Legal Road

Supporters of Proposition 8 — California's ban on same-sex marriage — say they feel encouraged by Monday's ruling from a federal court, which put gay marriages on indefinite hold while the case moves to appeal. But for gay couples who were planning to wed Wednesday, it was another disappointing delay.

A lower court judge cleared the way last week for same-sex marriages to resume at 5 p.m. Wednesday. But supporters of California's same-sex marriage ban immediately went to the 9th Circuit Court of Appeals, which granted a request to put gay marriages on hold while the case is on appeal.

Thea Lavin had been set to marry her partner in San Francisco Wednesday evening. "When you've been waiting your whole life to get civil rights, and be able to marry the person that you love, a few more months or another year doesn't feel that long," she says. "We can wait until this is resolved, but I hope it doesn't take that long."

Lavin and other couples could be waiting for months, even years, as the case runs its course, says Erwin Chemerinsky, dean of the University of California, Irvine School of Law.

"In practical terms, it means that gay and lesbian couples can't get married in California until and unless the 9th Circuit affirms Judge Walker's opinion," he says, referring to U.S. District Court Judge Vaughn Walker's ruling last week.

Warp Speed In Legal World

Waiting isn't a bad thing, says Chapman University law professor John Eastman. He says the 9th Circuit ruling shows the appeals court is willing to listen to both sides of the case, including people who support Proposition 8.

"As a technical matter, the fact that the 9th Circuit issued a stay — the legal standard is they found that the proponents have a substantial likelihood of success on the merits — and I think they've got to be greatly encouraged by the issuance of the stay by the court of appeals yesterday," he says.

The question now is whether outside groups that support the proposition will be allowed to join the legal arguments. The state of California is the only official party that has clear legal standing to argue that the marriage ban is constitutional.

And both Gov. Arnold Schwarzenegger and Attorney General Edmund "Jerry" Brown Jr. have indicated they won't make that argument. Eastman believes the appeals court has shown a willingness to listen to other proponents.

Briefs from all sides will be filed from September through November, and opening oral arguments are scheduled for early December. That's warp speed in the legal world, notes Carl Tobias, of the University of Richmond's School of Law.

"Usually, the average in the 9th Circuit is about 16 months, so you can see that this is much shorter than the typical appeal," he says.

UC Irvine's Chemerinsky agrees that the appeal is moving quickly through the system, but he also acknowledges that this still isn't quickly enough for same-sex couples who are waiting to marry. "For couples who had hoped to marry on Wednesday, this is a serious disappointment. On the other hand, given how slowly the wheels of justice often turn, it is expedited compared to how the circuit usually handles matters, even when they say they're doing expedited review," he says.

Up Next: Supreme Court

Some couples, like San Francisco's Thom Watson and his partner, are resigned to waiting. "For now, our tuxedos are going back into the closet, but we're not," he says.

Those tuxedos might be in storage for a while. No matter which way the court rules, the losing side will certainly appeal to the U.S. Supreme Court. If the court decides to hear the case, it means a decision probably wouldn't be issued until sometime in 2012.

Eastman, the Chapman University law professor, says it's time for the buck to stop there.

"Both sides have announced that whatever the 9th Circuit decides, they plan on asking the Supreme Court to take the case, and I think that's important," he says. "Obviously this is an issue that will affect the entire nation, and at some point the highest court in the land will have to weigh in."

But first, the 9th Circuit has to weigh in — and so the wait continues.



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