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MAURA DOLAN
A federal appeals court decided Monday to put same-sex marriage in California on hold at least until December, interrupting the wedding plans of scores of gay couples who were hoping to exchange vows later this week.
The brief order by a three-judge panel of the U.S. 9th Circuit Court of Appeals prevents an early showdown on the marriage question at the U.S. Supreme Court. Challengers of the marriage ban said they would not appeal Monday's order.
U.S. District Judge Vaughn R. Walker decided Aug. 4 that Proposition 8 violated the U.S. Constitution and later ordered gay marriage to resume at 5 p.m. Wednesday unless a higher court intervened. The panel's decision gave no explanation for staying Walker's order directing the state to once again allow same-sex couples to marry.
The panel said the court would hear the Proposition 8 challenge on an expedited basis and hold arguments the week of Dec. 6. Another panel of three judges is expected to rule on the appeal.
Loyola Law School professor Richard Hasen said Monday's order was strategically advantageous for supporters of same-sex marriage, no matter how disappointed many couples may be. If the panel had refused to place a hold on Walker's ruling, the supporters of Proposition 8 were prepared to seek a stay from the Supreme Court. The court is believed to be divided on the question of gay marriage, with Justice Anthony Kennedy considered a swing vote. A vote on a hold might have pushed the justices into taking an early position on the question.
"I think there are strategic reasons why even the most ardent supporter of gay marriage could opt for a stay," said Hasen, an expert on federal court stays. "The concern is that rushing things to the Supreme Court could lead to an adverse result [for supporters of gay marriage.] If this case takes another year to get to the U.S. Supreme Court, there could be more states that adopt same-sex marriage and more judicial opinions that reach that conclusion."
Hasen said the hold "takes the heat" off Kennedy and takes the case "off the front burner for a while."
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