A US federal appeals court has refused to allow same-sex marriages to take place in California 
while it considers the constitutionality of Proposition 8, an amendment to the state’s constitution which held that marriage can only be between a man and a woman.
California has Civil Partnerships. Proposition 8 was carried by a margin of 52pc to 48pc in the normally liberal state in November 2008. In 30 out of 30 states where there has been a vote on marriage, the traditional marriage position has won.
Leading pro-marriage groups welcomed the decision. Brian Brown, President of the National Organisation for Marriage (NOM), said the decision was “good news for the people of California”.
Chris Gacek, senior fellow at the Family Research Council said that the consequences of allowing same-sex couples to marry before a final decision on the ban would enormous.
The ruling “deals with the realities of the problems of letting open the flood gates – and then having to undo it,” Gacek said.
California Attorney General Kamala Harris had joined same-sex marriage proponents in urging the Ninth U.S. Circuit Court of Appeals to lift a stay that had been placed on a lower court’s ruling to strike down the ban on same-sex marriage.
Lawyers for two same-sex couples had sought again to lift the stay after the California Supreme Court recently said it would take at least until the end of the year to consider a legal question asked by the appeals court in the case.
They argued that the U.S. District Court ruling overturning the ban should be honored while the appeal, which they believe is unlikely to succeed, slowly make its way through the courts.
However, Proposition 8 supporters said the ban should stay in effect to honor the voters’ wishes until the legal questions are settled.
“The voters deserve for their votes to count even while the lawsuit is pending” said Andrew Pugno, general counsel for the Proposition 8 campaign.
“Both sides are well aware that this issue will not be finally decided until it reaches the U.S. Supreme Court, and it helps no one for the law to shift back and forth prior to that time,” he said.
In a letter to the court earlier this month, Harris said sponsors of Proposition 8 were unlikely to prevail in their appeal. Keeping it in effect, therefore, was a fruitless violation of homosexual Californians’ civil rights, Harris said.
Most legal scholars agrees that the ruling was reasonable. “The Ninth Circuit has decided, out of deference to state law, that it should wait for the input of the California Supreme Court before it decides the case,” says Kevin Johnson, Dean of the University of California – Davis Law School.
“While everyone is eager for resolution of the case, it is important that the Court take the time necessary to fully consider and correctly apply and interpret the relevant law,” he said
Had the court ruled to lift the ban, “thousands of couples would have immediately gotten married,” says Erwin Chemerinsky, Dean of the University of California – Irvine Law School.
“If Prop. 8 is ultimately upheld, there would be the question of what to do about those marriages. This is simplest in terms of preserving the status quo. But as a matter of law, it is harder to justify. A stay should be issued only if the party seeking it has a substantial likelihood of ultimately prevailing and I am sceptical of that.”
