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Last Thursday, the day after United States District Court Judge Vaughn Walker ruled that Proposition 8, the state ban on same-sex marriage in California, was unconstitutional, couples began showing up at West Hollywood City Hall to say their vows. West Hollywood City Clerk Tom West had to turn them away.
Following last week’s ruling, celebrations were held across West Hollywood, including a rally in West Hollywood Park last Wednesday night, where several hundred people gathered to hear speeches from Ted Olson and David Boise, the lawyers who argued the case, as well as Los Angeles Mayor Antonio Villaraigosa, West Hollywood Mayor John Heilman, and other celebrities and public officials. Chad Griffin, president of the American Foundation for Equal Rights, which brought the lawsuit against Proposition 8, introduced his partner of nine years on stage.
“We’re going to be married as soon as possible,” Griffin said.
Despite the revelatory atmosphere, however, it remains unclear if, when, and for how long same-sex marriages might be allowed to resume in California.
Currently, Walker is considering whether to stay his order preventing the enforcement of Proposition 8, which would require opponents of same-sex marriage to show that they will likely succeed on appeal, and that there will be irreparable harm if same-sex marriages resume. Several local legal scholars have said it was unlikely that Walker will stay his ruling, at which point same-sex marriages could resume. However, if he does not issue a stay, Proposition 8 proponents can apply for emergency stays before the Ninth Circuit Court of Appeals and, ultimately, the United States Supreme Court. If either of those courts grants a stay, same-sex marriages, will again be stopped, even if they had resumed after Walker’s ruling.
The current state of limbo for same-sex marriages in California portends a legal battle that may take years before the case is finally resolved.
In the meantime, couples and city officials in West Hollywood are preparing to resume same-sex marriages as quickly as possible. On Tuesday afternoon, the Los Angeles County Registrar deputized the five members of the West Hollywood City Council to perform civil marriages again. However, the registrar would only deputize the city councilmembers, not city staff members, who had also been allowed to perform marriages in 2008. In the months before the passage of Proposition 8, the City of West Hollywood performed about 1,000 of the roughly 18,000 same-sex marriage ceremonies across the state.
City Councilmember John Duran, who is also a partner in a private law practice, said only deputizing the councilmembers to perform marriages will make it difficult to conduct many ceremonies, because all five of them work full-time jobs, in addition to their work on the council.
“If the judge lifts the stay, I plan to head to city hall right away,” Duran said. “An emergency stay in the Ninth Circuit or the U.S. Supreme Court could happen on the same day, so we could have a window of hours of days in which to marry people. It’s sort of like the freedom trains. We’re going to try to get a few people through while we can.”
Scott Campbell, 41, and his fiancé Scott Hall, 35, who have been together for the past year and a half, are one of the couples hoping Duran will soon be able to marry them.
“We wish we’d met a year earlier, when we could have taken advantage of the three-month window before Prop. 8,” Campbell said. “We want to make sure we don’t miss our window this time, because if we do it could take four years for the case to get through the Supreme Court, and who knows if the decision would even go our way.”
Other legal questions also remain. For example, the defendants in the case — Governor Arnold Schwarzenegger and Attorney General Jerry Brown — have declined to file an appeal of Walker’s decision. The proponents of Proposition 8 who intervened to argue the case at the District Court, have filed an appeal, but the Ninth Circuit Court may decide they do not have standing to argue the case in federal court.
Daria Roithmayr, professor at the University of Southern California Gould School of Law, said she thought it was unlikely the court would not grant the interveners standing. However, she thought it was unlikely that either Walker or the Ninth Circuit Court would issue a stay.
“It’s different to say they have an interest in arguing the case, as opposed to saying that they’ll be irreparably harmed if a stay is not issued,” Roithmayr said. “Reading the decision, it’s so well buttressed by reference to the trial court record, I think it will be incredibly hard for the Ninth Circuit to overturn the decision. Even for the Supreme Court, which would have more invested in doing so, given the conservatives on the court, I think it would be very hard to overturn the decision on this record.”
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