Appeals Court Fails to Explain Prop. 8 Ruling
The three-judge panel of the Ninth U.S. Circuit Court of Appeals in San Francisco wasn't required to state its reasons for issuing a stay Monday that put the marriages on hold until the court decides whether Prop. 8 violated the constitutional right to marry one's chosen partner. That ruling won't come until at least early next year.
But the court's one-sentence order left thousands of gay and lesbian couples wondering why they had to shelve their wedding plans, and millions of voters on both sides uncertain about why Prop. 8 remains in effect after a federal judge found it unconstitutional.
The panel of Judges Sidney Thomas, Michael Hawkins and Edward Leavy is assigned to rule on all emergency motions in the nine-state circuit this month. Its Prop. 8 order contains no clues about the court's view of the 2008 initiative's constitutionality, a decision that will come from three different judges yet to be identified.
The panel would have denied a stay if it had concluded Prop. 8 was clearly unconstitutional, so its decision suggested that the measure's sponsors had at least an arguable case.
No hint at harm
But the order did not even hint at the answer to a critical question: how allowing same-sex couples to marry during the appeal would cause "irreparable harm," a legal requirement for a stay.
In his Aug. 4 ruling overturning Prop. 8 and in a subsequent order denying a stay, Chief U.S. District Judge Vaughn Walker said the measure's sponsors had failed to show any prospect of harm in allowing same-sex weddings - to the sponsors, the state or the institution of marriage. The appeals court panel evidently disagreed, but didn't say why.
"The question is, why can't couples get married today? And there's no explanation," said Erwin Chemerinsky, dean of the UC Irvine Law School and a longtime professor of federal court procedure. "I find that very discouraging" for lawyers and the general public, he said.
"This one is frustrating," said Pratheepan Gulasekaram, a constitutional law professor at Santa Clara University. "They did not directly respond to any of the points made by Judge Walker in his order lifting the stay."
John Eastman, a law professor at Chapman University in Orange County and a conservative counterpart to the liberal Chemerinsky, said no explanation was needed.
A judge's ruling that overturns a state law "constitutes irreparable harm as a matter of law," Eastman said. "The state has a fundamental interest in ensuring that its laws are upheld."
State won't defend Prop. 8
In the case of Prop. 8, however, the state is not defending the measure. Gov. Arnold Schwarzenegger and Attorney General Jerry Brown opted not to. The appeals court will decide whether the initiative's sponsors have legal standing to represent the state's interests during a hearing the week of Dec. 6 in San Francisco.
Walker allowed Protect Marriage, the conservative religious group that sponsored Prop. 8, to defend the measure in his court during a trial in January. But Walker said in his Aug. 4 ruling that he doubted the organization has standing to appeal, in light of the U.S. Supreme Court's comment in a 1997 Arizona case that a state usually has sole authority to defend its laws.
Backers' arguments
In their 95-page brief to the appeals court, Prop. 8's backers argued that California rulings recognize the right of an initiative sponsor to represent the voters' interests. They also said letting Walker's ruling take effect would allow same-sex marriages that could be invalidated if a higher court overturned the decision, a confusing situation that a stay would prevent.
Chemerinsky said the appeals court panel should have addressed those arguments, at least briefly, in Monday's order. He contended the judges would have had trouble explaining how Protect Marriage met any of the requirements to suspend Walker's ruling - a likelihood of winning on appeal, evidence of significant harm if the ruling took effect, and a showing that a stay was in the public interest.
But such explanations are rare for the court's monthly emergency-motions panel, which has hundreds of cases on its docket, said Rory Little, a professor at UC Hastings College of the Law in San Francisco.
'Not a satisfactory outcome'
In this case, he noted, the plaintiffs - two same-sex couples, a gay-rights group and the city of San Francisco - made it clear that they opposed a stay but wouldn't appeal one. As a result, Little said, the panel probably decided it could take the customary approach to an important case - preserve the status quo, without a written opinion, but schedule an early hearing.
Santa Clara's Gulasekaram agreed. The panel, he said, probably concluded that the public interest was best served by maintaining marriage restrictions that have been in place for decades and were reaffirmed by the voters in 2008.
"For gay persons in general, and more specifically, gay persons wanting to be married, this is not a satisfactory outcome," Gulasekaram said. Any explanation the court offered, he said, probably wouldn't "ease the burden of being told that another half-year of waiting won't be a big deal."
E-mail Bob Egelko at begelko@sfchronicle.com.
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