Same-sex weddings to resume in California soon, officials say

SAN FRANCISCO — The U.S. Supreme Court’s ruling on Proposition 8 will lead to same-sex weddings resuming in California in less than a month, officials said Wednesday, as disappointed backers of the marriage ban questioned whether to pursue a long-shot legal battle to limit the court’s action.

“After years of struggle, the U.S. Supreme Court today has made same-sex marriage a reality in California,” Gov. Jerry Brown said.

Before the weddings can take place, a federal appeals court must lift a hold on the original decision that struck down the voter-approved constitutional amendment. A spokesman for the U.S. 9th Circuit Court of Appeals said it usually takes the court at least 25 days to act after a Supreme Court ruling.

Brown ordered his public health agency to advise the state’s counties to “begin issuing marriage licenses to same-sex couples in California as soon as the 9th Circuit confirms the stay is lifted.”

Opponents of same-sex marriage have argued that Chief U.S. District Judge Vaughn Walker’s 2010 decision overturning Proposition 8 applied only to the two same-sex couples who challenged the ballot measure. But their enthusiasm for going to court to try to narrow the effect of the decision appeared to wane over the hours after the decision.

“This is far from over, I can tell you,” Chapman University Law professor John Eastman, who supports the same-sex marriage ban, said Wednesday morning.

But by late afternoon, Andy Pugno, chief counsel for ProtectMarriage, the sponsors of Proposition 8, said further legal action was not a certainty.

“It is possible there could be further litigation, and it is possible that this is going to be the end of it,” Pugno said.

With Brown and Atty. Gen. Kamala D. Harris pledging to block Proposition 8 across California, the momentum for gay marriage was likely to hinder any further challenges. Even Eastman admitted “the politics” of the issue would make more litigation unpredictable.

California voters passed Proposition 8 in 2008, six months after the California Supreme Court ruled that gays had the right to wed. The state high court later ruled the initiative was a valid state constitutional amendment but upheld the validity of an estimated 18,000 same-sex marriages that occurred before the election.

Lawyers then turned to the federal courts. They said Wednesday that they were ready to fend off any attempt to limit the reach of the injunction against Proposition 8.

“We already have motions drafted,” San Francisco City Atty. Dennis Herrera told a cheering crowd at City Hall on Wednesday. “We’re ready to go back to court.... We will not rest until we have marriage equality throughout this country.”

The Supreme Court ruled that ProtectMarriage lacked legal authority or standing to appeal Walker’s ruling blocking the ballot initiative. The high court said the sponsors of Proposition 8 were not directly affected by Walker’s ruling. Only state officials had the right to appeal, and they refused. That procedural decision wiped out the U.S. 9th Circuit Court of Appeals’ 2-1 ruling against Proposition 8, leaving only Walker’s decision in place and affecting only California.

That the now-retired trial judge would have the final word on Proposition 8 was not anticipated when the federal lawsuit challenging the marriage ban was filed in 2009.

The high-profile lawyers at the helm of the legal battle spoke of winning a broad pronouncement from the Supreme Court that would entitle gay couples to marry across the country. The district court in San Francisco was merely the first stop.

Walker, a Republican appointee who happens to be gay, drew the case by random selection. He noted at the time that his role was likely to be limited to fact finding, as the case was clearly bound to move upward.

Walker presided over a 12-day trial that examined whether homosexuality could be changed and whether same-sex marriage had any effect on opposite-sex couples. Experts testified on the history of marriage and the kinds of discrimination that gay men and lesbians have faced.

ProtectMarriage called only two witnesses, explaining that its other experts feared being harassed and that in any case the decision of higher courts would prevail. Given the lopsided nature of the testimony, the trial’s outcome seemed assured long before Walker ruled.

ProtectMarriage later argued that Walker should have stepped aside because he was gay, but the 9th Circuit disagreed. Walker did not publicly discuss being gay until after his ruling, though his sexual orientation was well known in the legal community and he did not try to hide it.

Walker, 69, said Wednesday that it had been a mistake for ProtectMarriage not to put on a case. He said he believed that the evidence from the trial had “subliminally” affected the Supreme Court and that other constitutional cases could benefit from trials.

“It allowed the parties to put on the evidence, to make the arguments and to get a decision based not on what the judge thought or history or broad constitutional provisions, but on the basis of evidence put in the record by witnesses who got on the stand and testified,” Walker said in an interview. “I think that makes a difference.”

UC Davis Law professor Vikram Amar said Walker’s ruling technically applied only to Los Angeles and Alameda counties, where the same-sex challengers live, because the suit was not filed as a class action.

“But limiting it, even if it is the legally correct thing to do, is pretty unlikely at this point,” Amar said.

Other scholars agreed. University of Santa Clara Law professor Gerald Uelmen said the proponents of Proposition 8 “would be laughed out of state court” if they argued that the California Constitution prevented a statewide enforcement of Walker’s order.

County clerks who preside over marriages said they were ready for same-sex weddings. Marriage licenses already are gender-neutral, and clerks began receiving calls Wednesday from gay couples wanting to schedule appointments.

Harris called on the 9th Circuit on Wednesday to lift its hold on Walker’s ruling immediately. The attorney general said she believed that the appeals court had the authority to act quickly.

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Times staff writers Jean Merl in Los Angeles, Maria LaGanga in San Francisco and Anthony York in Sacramento contributed to this report.