Had the three-judge panel granted the request, same-sex couples in California would have been able to obtain marriage licenses immediately. In refusing to lift the stay, the panel ensures that same-sex couples will not be able to obtain marriage licenses in California for at least another year or two.
The panel denied the request “at this time” and with very little explanation.
The panel’s one-sentence order cited two previous decisions. One was a 2009 ruling from the U.S. Supreme Court in Nken v. Holder, where the court said that, while there was a public interest in preventing “aliens” from being wrongfully removed from this country, there was no basis “for the blithe assertion” that an allowing a contested immigrant to stay in this country pending the outcome of his case did not cause “any injury to the public interest.”
Attorneys Ted Olson and David Boies argued, in requesting that the 9th Circuit panel lift the stay on the U.S. district court ruling in favor of same-sex couples, that there was no harm to the public in allowing same-sex couples to marry.
The second case referred to by the panel was Southeast Alaska Conservation Council v. U.S. Army Corps of Engineers. In that 2006 ruling from the 9th Circuit, a three-judge panel denied a request to vacate an injunction, noting that the court must balance “the plaintiffs likelihood of success against the relative hardship to the parties,” including “advancement of the public interest.”
The three-judge panel in Perry v. Schwarzenegger did not offer any details about either case to explain, specifically, why it was denying the request to vacate the stay in the Perry case.
Chad Griffin, president of the American Foundation for Equal Rights, which is sponsoring the lawsuit challenging California’s ban on same-sex marriages, expressed disappointment in the panel’s refusal to lift the stay.
“We felt then, as we do now,” said Griffin, “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.”
The 9th Circuit panel is still awaiting a decision from the California Supreme Court on whether there is any authority in California law that enables Yes on 8 to represent voters in appealing the district court decision in federal court. Arguments on that issue are expected in September and Shannon Minter of the National Center for Lesbian Rights recently speculated it could be 2012 before the California Supreme Court issues a decision on that matter alone.
Once the state supreme court weighs in on standing, the federal appeals panel must then issue its own opinion concerning standing. If it decides Yes on 8 has standing, it will also issue its opinion on whether Proposition 8 does violate the federal constitution. Thus, in denying the request to lift the stay on the district court decision, the panel this week signals that it could be a year or two before same-sex couples in California might be able to obtain marriage licenses.