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Gay-Marriage Decision Foreshadows Long Legal Road

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Gay-Marriage Decision Foreshadows Long Legal Road

Gay-Marriage Decision Foreshadows Long Legal Road

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  • <iframe src="" width="100%" height="290" frameborder="0" scrolling="no" title="NPR embedded audio player">
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From NPR News, this is ALL THINGS CONSIDERED. I'm Robert Siegel.


And I'm Michele Norris.

Supporters of Prop 8 - California's ban on same-sex marriage - say they feel encouraged by yesterday's ruling from a federal appeals court. The 9th Circuit put gay marriages on indefinite hold while the case moves to appeal. Prop 8 supporters have been arguing for exactly that kind of delay ever since a lower court judge cleared the way for same-sex marriages to begin tomorrow.

NPR's Karen Grigsby Bates reports.

KAREN GRIGSBY BATES: Last week, a big whoop went up on the steps of the U.S. District Courthouse in San Francisco as the news filtered out: Weddings for same-sex couples could resume on Wednesday, August 18th at 5 p.m., barring appeal.

That appeal happened immediately, when supporters of California's same-sex marriage ban went to the 9th Circuit Court. They asked that marriages be put on hold while the case is on appeal, and that's exactly what the three-judge panel granted.

For gay couples who were planning to wed tomorrow, it was another disappointing delay. Thea Lavine(ph) had been set to marry her partner in San Francisco Wednesday evening.

Ms. THEA LAVINE: When you've been waiting your whole life to get civil rights and to be able to marry the person that you love, a few more months or another year doesn't feel like that long. And we can wait until this is resolved, but I hope it doesn't take that long.

BATES: Lavine and other couples could be waiting for months, even years as the case runs its course, says Erwin Chemerinsky, dean of the U.C. Irvine School of Law.

Mr. ERWIN CHEMERINSKY (Dean, U.C. 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.

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

Professor JOHN EASTMAN (Law Professor, Chapman University): As a technical matter, the fact that the 9th Circuit issued a stay, the legal standard is that they found that the plaintiffs or 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 a stay by the court of appeals yesterday.

BATES: The question now is whether outside groups that support Prop 8 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 the governor and the attorney general have indicated they won't. Eastman believes the appeals court has shown a willingness to listen to other Prop 8 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.

Mr. CARL TOBIAS (School of Law, University of Richmond): Usually, the average in the 9th Circuit is about 16 months. So you can see that this is much shorter than the typical appeal.

BATES: Some couples, like San Francisco Tom Watson(ph) and his partner are resigned to waiting.

Mr. TOM WATSON: For now, our tuxedos are going back into the closet, but we're not.

BATES: 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 won't be issued until sometime in 2012.

Chapman's John Eastman says it's time for the buck to stop there.

Prof. CHAPMAN: 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. Obviously, this is an issue that's now going to affect the entire nation, and at some point, the highest court in the land is going to have to weigh in.

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

Karen Grigsby Bates, NPR News.

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