A federal appeals court cleared the way today for same-sex marriages to resume in California, setting off an expected wave of weddings that began with nuptials at San Francisco City Hall this afternoon by two women who sued four years ago for the right to marry.
A three-judge panel of the 9th U.S. Circuit Court of Appeals unanimously lifted a stay it issued in 2010 of a lower court order allowing gay and lesbian marriages.
The action came two days after the U.S. Supreme Court dismissed an appeal by the sponsors of Proposition 8, a same-sex marriage ban enacted by state voters in a 2008 initiative.
The Supreme Court said the sponsors had no legal authority to appeal the lower court ruling striking down Proposition 8 after Gov. Jerry Brown and state Attorney General Kamala Harris—the official defendants in the case—declined to appeal.
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The stay had been issued by the 9th Circuit during the appeal. It was the only legal obstacle to the resumption of gay and lesbian marriages, which were previously briefly legal in California for several months in 2008 until voters enacted Proposition 8 in November of that year.
Gov. Jerry Brown responded by immediately ordering clerks and recorders in all 58 counties to resume licensing and registering same-sex marriages.
“This means that same-sex marriage is again legal in California,” Brown instructed the city clerks.
Two of the plaintiffs who challenged Proposition 8 in a civil rights lawsuit in 2009, Kristin Perry and Sandra Stier, were believed to be the first same-sex couple to marry in the wake of today’s order.
They were married at San Francisco City Hall shortly before 5 p.m. by California Attorney General Kamala Harris.
“Right now, we feel really victorious and thrilled and relieved to be at the end of this long journey,” Stier said.
The other two plaintiffs, Jeffrey Zarrillo and Paul Katami of Burbank, were married at about 6:30 p.m. at Los Angeles City Hall.
“Equal feels different,” Katami said. “It’s about our lives, our private association and our public connection to the community.”
Clerks in several other Bay Area counties made plans to begin issuing licenses on Monday.
The reinstated injunction allowing gay marriage was issued by now-retired U.S. District Judge Vaughn Walker of San Francisco.
After holding a 13-day non-jury trial, he ruled in 2010 that Proposition 8 violated the federal constitutional rights of equal treatment and due process, and issued an injunction barring state officials from enforcing Proposition 8.
The lifting of the stay allows that injunction to go into effect.
Proposition 8 was also struck down by the 9th U.S. Circuit Court of Appeals in 2012, but on narrower grounds than in Walker’s ruling. A circuit panel said by a 2-1 vote that it was unconstitutional for California to withdraw an existing right to same-sex marriage for no reason other than hostility toward homosexuals.
But the Supreme Court, by ruling the Proposition 8 sponsors had no standing to appeal, nullified the 9th Circuit decision and in effect left Walker’s decision in place, although the high court did not rule directly on whether there is a constitutional right to same-sex marriage.
The stay was ended by a unanimous vote of the same 9th Circuit panel, made up of Judges Stephen Reinhardt, Michael Daly Hawkins, and N. Randy Smith. Smith had dissented in last year’s now-nullified decision.
“The stay in the above matter is dissolved effective immediately,” the judges said in a one-line order without further comment.
The Proposition 8 sponsors and their campaign committee, Protect Marriage, deplored the order, but did not indicate whether they plan to initiate any further legal action.
“It remains to be seen whether the fight can go on, but either way, it is a disgraceful day for California,” said Andrew Pugno, general counsel to Protect Marriage.
The Supreme Court’s decision on Wednesday will not become final for at least 25 days, during which time the sponsors could ask for a rehearing. The high court rarely grants requests for rehearing.
The Proposition 8 sponsors have not indicated whether they plan to request reconsideration.
Pugno charged that the 9th Circuit “has rushed forward to order same-sex marriage licenses” without waiting for the 25-day period.
“This outrageous act tops off a chronic pattern of lawlessness, throughout this case, by judges and politicians hell-bent on thwarting the vote of the people to redefine marriage by any means,” Pugno said.
But Julie Nice, a constitutional law professor at the University of San Francisco, said the 9th Circuit’s action was appropriate and within its authority.
Because the Supreme Court said the 9th Circuit has no jurisdiction over the case, “there was no court jurisdiction to undergird the stay,” Nice said.
In addition, she said, “The stay itself was unusual,” because a court decision finding a state law unconstitutional is more normally left in effect instead of being stayed during appeals.
Nice said there is “a scintilla of possibility” that the Proposition 8 supporters might be able to ask the Supreme Court for a stay while they seek a rehearing, but she said that was unlikely.
Theodore Boutrous, a lawyer for the two plaintiff couples, said the 9th Circuit action was “totally authorized by the court’s rules and federal rules” and said he thinks there is no chance the Supreme Court would issue a new stay.
“The law in California is (now) that people can get married, they’re getting married and they want to live their lives as happy people,” Boutrous said in a news conference at San Francisco City Hall.
California is now the 13th state, in addition to District of Columbia, to recognize a right to same-sex marriage as a result of court rulings, laws by state legislatures or voter initiatives.
Harris, who advised Brown earlier this month that Walker’s injunction will apply statewide, said, “I am thrilled that the 9th Circuit Court of Appeals lifted its stay to allow same-sex couples to legally marry in California.”
Perry, Stier, Katami and Zarrillo filed their civil rights lawsuit in federal court in San Francisco in May 22, 2009, four days before the California Supreme Court upheld state voters’ right to amend the California Constitution by enacting Proposition 8.
That amendment overruled a May 2008 decision in which the California Supreme Court had said the state constitution provided a right to same-sex marriage.
The California Supreme Court left in place, however, 18,000 marriages performed during a several-month period in 2008 before Proposition 8 was approved in November of that year.
The two couples’ lawsuit took a different tack by basing their arguments on federal constitutional rights.
Photos: Robert Ristelhueber, Report: Julia Cheever, Bay City News