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Prop 8 next steps: Judge to decide whether to lift ‘stay’ in ruling

Thursday, August 5, 2010
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Full coverage on Wednesday’s ruling here.
Reaction to Wednesday’s ruling here.

The federal judge who struck down California’s voter-approved ban on gay marriage must now decide whether the ban should remain in tact while the ruling makes its way through the appeals process.

Prop 8 opponents at a rally to celebrate the ruling to overturn the gay marriage ban.

U.S. District Judge Vaughn Walker ruled Wednesday that Proposition 8 was in violation of the U.S. Constitution’s 14th Amendment guarantees of equal protection and due process of law.

But shortly after issuing his ruling, Walker issued a temporary “stay,” effectively leaving Prop 8 in tact while he considers whether his ruling should remain on hold as the case moves to the 9th U.S. Circuit Court of Appeals.

The stay prevents gay couples from marrying while the case is being appealed, but legal analysts speculate it is unlikely that Judge Walker would maintain the stay — judges often hesitate to do so after they have found people’s fundamental rights are being infringed.

On Thursday, Proposition 8 supporters filed their motion for an appeal one day before the Friday’s deadline. Walker asked both sides for written arguments on whether he should extend the stay.

If Walker decides to lift the stay, his ruling can take effect immediately, allowing California to resume issuing marriage licenses to same-sex couples. Officials in several counties have already signaled they are ready to start issuing marriage licenses to gay couples should the stay be lifted.

That decision could create a new window of opportunity for same-sex couples to marry, similar to May 2008, when the State Supreme Court overturned California’s ban on same-sex marriages. About 18,000 couples were married before Proposition 8 was passed by 52 percent of the vote that November.

Already, Prop 8 supporters have said they would ask the appeals court and the U.S. Supreme Court for an emergency stay if that happens.

Ted Boutrous, one of the plaintiff’s attorneys in the case, said, “No one is harmed by people getting married. Our clients are hurt every day that Prop 8 is in effect and their constitutional rights are violated.”

If a stay is granted, same-sex couples could be in store for another long wait while the legal battle wages on. The appeals court posted a schedule Thursday for filing briefs in the case that extends through late December, meaning that it will not hold a hearing until early 2011.

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