Ninth Circuit Rejects Request To Lift Stay On Same-Sex Marriages In California

The U.S. Court of Appeals for the Ninth Circuit Wednesday denied a request filed by the American Foundation for Equal Rights (AFER) to lift a stay that would keep California’s Proposition 8 in effect during the appeal of Perry v. Brown. In effect, the decision means that same-sex couples in California will not be allowed to marry while Proposition 8’s constitutionality is being decided.

The court issued an order denying the request, simply stating that it had considered “all of the facts and circumstances” surrounding the motion to vacate the stay:

Having considered all of the factors set forth in Nken v. Holder, 129 S. Ct. 1749, 1756 (2009), and all of the facts and circumstances surrounding Plaintiffs’ motion to vacate the stay pending appeal, as well as the standard for vacatur set forth in Southeast Alaska Conservation Council v. U.S. Army Corps of Engineers, 472 F.3d 1097, 1101 (9th Cir. 2006), we deny Plaintiffs’ motion at this time.

The decision is a major blow to the thousands of gay and lesbian couples who had hoped to get married during the time it will take to resolve questions about Prop 8’s constitutionality.

After the court’s announcement, AFER Board President Chad Griffin issued a statement criticizing the decision for requiring California’s gay and lesbian couples to “put their lives on hold”:

Several weeks ago, we filed a motion with the U.S. Court of Appeals for the Ninth Circuit asking the Court to lift its stay and allow California’s gay and lesbian couples to marry. We felt then, as we do now, that it is decidedly unjust and unreasonable to expect California’s gay and lesbian couples to put their lives on hold and suffer daily discrimination as second-class citizens while their U.S. District Court victory comes to its final conclusion.

It is un-American to deprive gay and lesbian couples of their fundamental constitutional right to marry. These are adults in committed, loving relationships who just want to live their lives without government interference.

Equality California Executive Director Geoff Kors also released a statement criticizing the court for keeping same-sex families trapped in “legal limbo”:

Today’s ruling is a major setback for same-sex couples and their families who must continue living every day in legal limbo without the basic freedoms and protections guaranteed to them by our nation’s Constitution. Every day same-sex couples are denied the freedom to marry, their families suffer significant harm.

Ari Ezra Waldman, Teaching Fellow at the California Western School of Law in San Diego, argued that the court erred in its decision:

The governing rule that stays can only be lifted when the original reasons for the stay are no longer present assumes that there were valid original reasons for the stay. Here, as the Olson/Boies team argued and as we have discussed before, Prop 8 Proponents failed to meet the requirements for the stay -- they failed to show a strong likelihood of success on the merits, failed to show that the balance of hardships favored a stay and failed to show specific irreparable harm in the absence of a stay. The stay was likely issued for political reasons (see below) in spite of the appropriate legal standard for stays of lower court orders. Therefore, the notion that there are no changed circumstances here may be true, but it is also misleading and irrelevant to the question of the validity of the stay when it was issued.

The Ninth Circuit's half-review -- it only looked at whether the stay is still valid rather than also looking at whether the stay was ever valid -- will do damage to the fundamental rights of gay men and women in California. But, there is a silver lining: This decision in no way affects the underlying case. It just means we have to wait.