The Stay Stays

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  The 9th Circuit Court of Appeals today denied a motion by attorneys for two same sex couples to lift the stay on Judge Walker's decision striking down Prop. 8. Last summer Walker's sweeping decision set aside all the arguments against gay marriage, saying tradition, harm to heterosexual couples and traditional marriage, etc. didn't hold up to legal scrutiny -- and violated the U.S. Constitution's guarantee of Equal Protection and Due Process. Prop. 8 backers immediately appealed the ruling to the 9th Circuit, which issued its stay of Walker's decision.

   Attorney General Kamala Harris added her voice in support of lifting the stay after the Obama Administration announced it would no longer defend the federal Defense of Marriage Act.

   While backers of Prop. 8 are no doubt pleased, Equality California today issued a statement calling it " a major setback for same sex couples and their families...". But legal observers were not surprised by Wednesday's decision.

  UC Davis law professor Vik Amar noted that courts issue stays when the stay proponent has the likelihood of success on the legal merits. They also consider harm done by enacting or lifting the stay. In this case, Amar says while the validity of the stay can be argued either way, nothing much has changed since the stay was issued, making it unlikely a court will reverse itself.

    While attorneys fighting Prop. 8 argue their clients are irreparably harmed by being denied their equal rights, Amar notes that if the 9th Circuit lifted the stay and allowed gay marriages to resume, those marriages could be in jeopardy if the U.S. Supreme Court ultimately finds Prop. 8 valid. The 9th Circuit judges, Amar speculates, probably didn't want to risk that harm -- or what some might see as legal chaos caused by enacting a ban, lifting it, then enacting it again.

   The court's action means California's ban will likely remain in place for at least a year, perhaps longer.

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