Prop. 8 Appeal Could Conclude Without Ruling on Gay Marriage

The Ninth Circuit Court of Appeals could avoid altogether the divisive case of California's Proposition 8, leaving the conclusion of whether gay marriage is a constitutional right to another court and another time.

Before taking up the question of whether Prop. 8 is constitutional, the three-judge panel of the federal appeals court in San Francisco must first decide if the appeal case is even valid. The defendants named in the original case – Gov. Arnold Schwarzenegger and Attorney General Jerry Brown – have both refused to appeal the decision of Judge Vaughn Walker.

That left supporters of the voter-approved ballot measure to file the appeal and defend it. The panel is deciding whether they have a legal right to appeal Walker's ruling. If the appeals court decides they do not, then Walker's ruling will go into effect and the question of whether gay marriage is a constitutional right will be left unresolved and await another legal battle.

Both sides had hoped to push the case all the way to the Supreme Court and have finality to the question of whether gay marriage is a right under the Constitution.

"Judges are human beings," commented Alan Morrison, a law professor at George Washington University, to The Mercury News. "If there is an easy way out, most people will look for it. And this would be an easy way out for the judges."

On Monday, the Ninth Circuit Court of Appeals surprised both sides by granting the request of Prop. 8 proponents to stay Judge Walker's Aug. 4 decision to strike down Prop. 8 while the court considers the case. Before the hold, same-sex marriages were set to begin on Wednesday. Now, the earliest gay marriage could become legal in California is in December, when the oral arguments are scheduled to start.

Though Prop. 8 proponents hailed the decision, experts say the approved stay on Walker's same-sex marriage ruling does not mean they have an edge in the case. The well-known liberal appeals court could rule either way, or, not take up the case at all.

"I don't think that the granting of the stay means much, if anything, about how the Ninth Circuit will rule on the merits," said Richard Hasen, a professor of law at the Loyola Law School Los Angeles, according to the New York Times. "It won't be the same panel deciding the merits as decided the stay motion."

The 9th Circuit Court has scheduled oral arguments for the week of Dec. 6 and changed the due dates of the opening brief to Sept. 17 and the answering brief to Oct. 18.

Same-sex marriage is presently legal in five states – Connecticut, Iowa, Massachusetts, New Hampshire, Vermont – and Washington, D.C.

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