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Lisa Leff the Associated Press
Published: 17 August 2010

SAN FRANCISCO — Gay couples who had been gearing up to get married in California this week had to put their wedding plans on hold once again after a federal appeals court said it first wanted to consider the constitutionality of the state's same-sex marriage ban.
A three-judge panel of the 9th U.S. Circuit Court of Appeals imposed an emergency stay Monday on a trial court judge's ruling overturning the ban, known as Proposition 8. Chief U.S. District Court Judge Vaughn Walker had ordered state officials to stop enforcing the measure starting Wednesday, clearing the way for county clerks to issue marriage licenses to same-sex couples.
"It's saddening just to know that we still have to keep waiting for this basic human right," Marcia Davalos, of Los Angeles, a health care advocate who had planned to marry her partner, Laurette Healey, said when the stay was issued Monday. "We were getting excited and then all of a sudden it's like, 'Ugh.' It's a roller-coaster."
Lawyers for the two gay couples who challenged the ban said Monday they would not appeal the panel's decision on the stay to the U.S. Supreme Court. They said they were satisfied the appeals court had agreed to fast-track its consideration of the Proposition 8 case by scheduling oral arguments for the week of Dec. 6.
"Today's order from the 9th Circuit for an expedited hearing schedule ensures that we will triumph over Prop. 8 as quickly as possible," said Chad Griffin, president of the American Foundation for Equal Rights, a group funding the effort to get the voter-approved gay marriage ban permanently overturned. "Our attorneys are ready to take this case all the way through the appeals court and to the United States Supreme Court."
Attorneys for backers of the voter-approved measure applauded the decision. In seeking the emergency stay, they had argued that sanctioning same-sex unions while the case was on appeal would create legal chaos if the ban is eventually upheld.
"Invalidating the people's vote based on just one judge's opinion would not have been appropriate, and would have shaken the people's confidence in our elections and the right to vote itself," said Andy Pugno, general counsel for the coalition of religious and conservative groups that sponsored Proposition 8.
Under the timetable laid out Monday, it was doubtful a decision would come down from the 9th Circuit before next year.
A different three-judge panel than the one that issued Monday's decision will be assigned to decide the constitutional question that many believe will eventually end up before the Supreme Court.
County clerks throughout the state had been preparing to issue marriage licenses to same-sex couples for the first time since Proposition 8 passed in November 2008. The measure amended the California Constitution to overrule a state Supreme Court ruling that legalized same-sex unions earlier that year.
"I'm sad, but I'm also glad that I didn't pay the $100 to reserve an appointment at the clerk's office," said Thea Lavin, 31, of San Francisco, who had planned to wed her partner, Jess Gabbert, 30, if the stay were denied. "This has happened so many times before where we take two steps forward, one step back."
Walker ruled on Aug. 4 that Proposition 8 violated the equal protection and due process rights of gays and lesbians guaranteed under the U.S. Constitution.
The ban's sponsors appealed that ruling and also asked the 9th Circuit to block same-sex weddings in the meantime. They claimed in papers filed with the 9th Circuit that gay marriages would harm the state's interest in promoting responsible procreation through heterosexual marriage.
California Attorney General Jerry Brown had joined lawyers for the plaintiffs in urging the appeals court to allow the weddings this week, arguing that keeping the ban in place any longer would harm the civil rights of gays and lesbians.
In a two-page order granting the stay, the appeals court panel did not indicate why it was keeping Proposition 8 in effect until it could consider the appeal of Walker's verdict.
But it ordered Proposition 8 sponsors to address in their opening brief due Sept. 17 whether they even have the legal right to try to have the trial judge's ruling overturned. Both Brown and California Gov. Arnold Schwarzenegger, the original defendants in the case, have said they support same-sex marriage and refused to defend Proposition 8 in court.
"The delay is excruciating and heartbreaking I know for the couples, but the ruling did include a significant victory by expediting the case and by highlighting that the proponents have a heavy lift to show they even have the right to bring an appeal," said Shannon Minter, legal director of the National Center for Lesbian Rights. "So those aspects of today's ruling do go some way legally to counterbalance the disappointment."
Currently, same-sex couples can legally wed only in Massachusetts, Iowa, Connecticut, Vermont, New Hampshire and Washington, D.C.

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