SAN FRANCISCO (BP)–The U.S. Ninth Circuit Court of Appeals handed traditional marriage supporters a significant victory Aug. 16 by stopping all “gay marriages” in California until the court considers the Prop 8 case, although the justices also put it on a fast track and scheduled oral arguments for December.
The court’s 3-0 ruling overturned an Aug. 12 ruling by U.S. District Judge Vaughn Walker, who had lifted the temporary stay on his landmark Proposition 8 ruling and set a date of Aug. 18 (Wednesday) at 5 p.m. local time for “gay marriages” in the state to begin. Walker’s decision was having a statewide impact: The clerk in Los Angeles County had announced his office would stay open until 8 that evening to accompany same-sex couples wanting licenses.
But now, those plans are on hold until at least next year — if not longer — when a ruling is issued. From there, the case, perhaps the most significant one concerning “gay marriage” in U.S. history, could head to the Supreme Court.
It is the third time Walker has been overturned by a higher court during the Prop 8 case. At one point a Ninth Circuit panel reversed him when he had ordered Prop 8 backers to release internal documents from their 2008 campaign. At another point the Supreme Court stepped in and, in a 5-4 ruling, said Walker could not allow the trial to be broadcast. The justices said Walker did not follow federal law.
The Ninth Circuit panel was comprised of two nominees of President Clinton and one nominee of President Reagan. It is not necessarily the same panel that will hear the actual case.
Prop 8 passed in 2008 by a margin of 52-48 percent and amended California’s constitution to define marriage as between one man and one woman.
Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission, had called Walker’s Aug. 12 lifting of the stay an example of “judicial arrogance.” It is common for lower courts to stay their rulings while higher courts hear them.
“I applaud a rare burst of judicial restraint and sanity from the Ninth Circuit Court of Appeals,” Land told Baptist Press. “It would have been extraordinary if the Ninth Circuit were not to have granted a stay. It’s virtually the only appeals court in the country where it would have been a question. Nevertheless, doing the right thing should be applauded, and we should give at least one clap to the Ninth Circuit.”
California Gov. Arnold Schwarzenegger, a Republican, and Attorney General Jerry Brown, a Democrat, had asked Walker to lift the stay and had urged the Ninth Circuit to let the “gay marriages” commence immediately. They announced they would not appeal the Ninth Circuit decision.
Brown last year skirted normal protocol and opted not to defend Prop 8 in court, leaving its defense up to Prop 8’s official proponents, ProtectMarriage.com.
Attorneys for ProtectMarriage.com had filed a 73-page emergency motion with the Ninth Circuit, asking for an emergency stay and asserting Walker’s decision was wrong on most every issue.
“The district court simply ignored virtually everything — judicial authority, the works of eminent scholars past and present in all relevant academic fields, extensive documentary and historical evidence, and even simple common sense — opposed to its conclusions,” the ProtectMarriage.com attorneys wrote.
Contrary to common belief, the attorneys argued, the Supreme Court has considered the issue of “gay marriage” before. In 1972, a “gay marriage” lawsuit by a Minnesota homosexual couple was appealed to the Supreme Court, which dismissed the case “for want of substantial federal question.”
The case, Baker v. Nelson, has been cited by federal courts before, including in 2005, when District Judge James S. Moody Jr. pointed to Baker in dismissing a lawsuit against the Defense of Marriage Act. The Supreme Court, Moody wrote, “has not explicitly or implicitly overturned its holding in Baker or provided the lower courts, including this court, with any reason to believe that the holding is invalid today.” In 2006 the Eighth Circuit also pointed to Baker in restoring Nebraska’s marriage amendment, which had been overturned by a lower court.
The ProtectMarriage.com attorney wrote in their motion, “The district court did not confront the Supreme Court’s holding in Baker, binding authority from this Court, or any of the well established lines of authority opposed to its conclusions. It simply ignored them.”
Legal groups defending Prop 8 applauded the Ninth Circuit’s ruling.
“It made no sense to impose a radical change in marriage on the people of California before all appeals on their behalf are heard, so the Ninth Circuit’s decision is clearly the right call,” said Jim Campbell, an attorney with the Alliance Defense Fund, which is involved in the case. “Refusing to stay the decision would only have created more legal confusion surrounding any same-sex unions entered while the appeal is pending. This case has just begun.”
The Ninth Circuit set oral arguments for the week of Dec. 6 and said the first brief in the case is due Sept. 17. The court also ordered ProtectMarriage.com attorneys to explain why the “appeal should not be dismissed for lack of … standing” — a technical legal issue that could give “gay marriage” supporters a default victory.
Both sides have been debating the standing issue since Walker raised the question in his Aug. 12 stay ruling. Walker cited Supreme Court precedent and argued that ProtectMarriage.com did not have standing to appeal, and Prop 8 opponents argued as much in their latest briefs.
The legal question is this: Can ProtectMarriage.com file an appeal in a lawsuit when it does not have the authority actually to enforce the law and won’t be forced to issue the licenses if Prop 8 is reversed? ProtectMarriage.com is not the defendant in the case; Schwarzenegger is. But since Schwarzenegger and Brown refused to defend the law, Walker allowed ProtectMarriage.com to intervene.
Ed Whelan, president of the Ethics and Public Policy Center, wrote on a NationalReview.com blog that Walker “shouldn’t be able to have it both ways.”
“If Prop 8 proponents had an interest under state law sufficient to enable them to intervene as of right to offer the only actual defense of Prop 8 (and California law may well be different on this matter from what Arizona law was), then they have a right to pursue an appeal of his adverse judgment,” Whelan wrote.
One California county, Imperial County, wanted to defend Prop 8 in federal court but Walker would not allow it. The county has asked the Ninth Circuit to allow it to defend the law.
Conservatives warn that religious liberty will suffer if “gay marriage” is legalized nationwide.
In New Mexico last year, a state judge ruled that a husband-and wife-owned photography company violated state anti-discrimination laws when they refused to take pictures of a lesbian commitment ceremony. In New Jersey, a Methodist-owned beachfront property lost part of its tax-exempt status because its leaders denied use of the property to a lesbian couple for a commitment ceremony. States with “gay marriage” also have seen controversies over what is taught in public schools.
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Michael Foust is an assistant editor of Baptist Press. Read a Q&A about the case at http://www.bpnews.net/bpnews.asp?id=33464.
