Appeals Court Reimposes Bar On California Gay Marriage Pending Appeal

Same-sex marriages are still barred in California, but how long that lasts is in the hands of three judges on the 9th Circuit Court of Appeals.

Late today, a three-judge panel at the 9th Circuit reimposed the stay on Judge Vaugh Walker’s Proposition 8 ruling, meaning that same-sex marriage will be barred in California at least until the appeal has been ruled upon:

SAN FRANCISCO — A federal appeals court has extended a stay on same-sex marriages in California until it decides whether a ban on such unions is constitutional.

It is just the latest turn in a protracted legal battle over Proposition 8, the voter-approved ban.

The ruling, issued by a three-judge panel of the United States Court of Appeals for the Ninth Circuit, came less than a week after a federal district court judge, Vaughn R. Walker, lifted a stay he had imposed to allow proponents of the ban to argue why same-sex marriages should not proceed. On Aug. 4, Judge Walker ruled that Proposition 8 was unconstitutional.

Even when lifting his stay on Thursday, Judge Walker allowed six days for the Ninth Circuit to review his ruling. That left many gay and lesbian couples and their supporters hopeful that same-sex marriages would resume on Wednesday at 5 p.m., when Judge Walker’s stay would have expired.

That will not happen. Now, such weddings will not resume until, at least, the appeals court decides the case. And perhaps not until it is decided by the United States Supreme Court.

The Ninth Circuit panel made up of Judges Edward Leavy, Michael Daly Hawkins and Sidney R. Thomas — determined that a stay pending the appeal was appropriate.

The panel requested the first briefs to be filed in September and for the appeal to be heard in court in December.

This isn’t entirely surprising, and the Court’s brief order on the stay, does contain this interesting line:

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.See Arizonans For Official English v. Arizona, 520 U.S. 43, 66 (1997)

This goes back to the standing issue I discussed last week, and while the consensus among the legal bloggers I’ve been reading seems to be that the Court of Appeals will grant the Proposition 8 proponents standing to argue that appeal, that isn’t guaranteed by any means. So, stay tuned.

For those keeping score, Judge Leavey was appointed by President Reagan in 1987 and was elevated to Senior status in 1997, Judge Hawkins was appointed by President Clinton in 1994 and elevated to Senior status in February of this year, and Judge Thomas was appointed by President Clinton in 1996 and briefly considered as a replacement for Justice John Paul Stevens this past spring.

FILED UNDER: Gender Issues, Law and the Courts, US Politics, , , , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. Herb says:

    Activist judges! Oh wait….

    If I were a gay Californian in a monogamous relationship, I’d plan the ceremony anyway and start sending out invites….to every registered voter in California. It would read:

    “In 2008 you voted on my marriage. Now attend my wedding!”

    I don’t know how many who would come, but considering the millions of voters who want a say in my personal life, I’d hope there would be a big turnout.

  2. The Writer says:

    This is just the process of the courts balancing democracy, and then the courts checking their own power, too. The issue that I think needs to be most addressed is: is this a rights question or a policy question? If it is a policy question, is it appropriate for courts to be weighing in? Or should the people decide?