From Canyon to Cove: Taking bets on same-sex marriage rights

It’s been a roller-coaster ride — and not the fun kind — for same-sex couples in California who want to tie the knot.

First there was the nail-biting trial over Proposition 8, the constitutional amendment approved by a narrow majority of voters that took away the right to marry in the most populous state in the nation. Earlier this year, we watched blow-by-blow as federal Judge Vaughn Walker presided over a lengthy trial as same-sex-marriage opponents and proponents grilled each other testily.

Then there was the wait as Walker crafted his decision — and giddy elation when the judge ruled on Aug. 4 that Prop 8 was an unconstitutional infringement on the civil rights of a beleaguered minority. But not so fast. At the same time, Walker put a stay on the presumed outcome of such a decision — that gay and lesbian couples resume marrying — until the Prop 8 proponents had a chance to file an appeal, which they did.

Then Walker suddenly announced Aug. 12 he would lift the stay at 5 p.m. Aug. 18, and champagne, wedding cakes, tuxes and bridal dresses began to fly off shelves in cities like San Francisco and West Hollywood.

But again, not so fast. A three-judge panel of the 9th Circuit Court of Appeals slammed the door again on Aug. 16 by issuing a terse decision that the stay would be in place at least until the court heard the full appeal in December.

Now the Monday morning quarterbacking starts, as legal experts weigh in on whether the latest action is a brief detour or could mean another long fight ahead or even the beginning of the end of the road for same-sex-marriage rights.

Here’s the score so far.

Some believe the three-judge panel did same sex marriage proponents two favors, one by fast-tracking the appeal and two, by putting marriages on hold. The latter is considered “favorable” because same sex marriage opponents were apparently planning to take their case to the U.S. Supreme Court immediately if they had to in order to halt same sex weddings — and that might be too soon, the thinking goes.

Personally, I’d have loved to see this play out in D.C., where same-sex weddings are already legal. Can you imagine it? Same-sex couples could be standing on the steps of the Supreme Court saying their vows as opponents bluster through stomping on their flowers as they rush to file their emergency briefs to halt weddings in California. It could happen.

The “go-slow” camp thinks the longer the process continues, the more likelihood that same sex marriages will become accepted and eventually win the day even at the Supremes.

I happen to agree with UC Irvine Law School’s Erwin Chemerinsky, who opines that keeping same sex couples from marrying — after the law stopping the marriages has been overturned — is very unfortunate. Not only does it keep more same sex couples from legally tying the knot and joining the thousands who married during the six-month “window” between June and November of 2008, it sends a signal that the appellate court is likely to overturn Walker’s ruling and allow Proposition 8 to stand.

Chapman University law professor Katherine Darmer agrees with this assessment, responding as follows to my email requesting a comment: “I do not take this as a good development for those of us who support marriage equality. It gives me less confidence that the 9th Circuit will uphold the district court opinion, although I am still hopeful that eventually the 9th Circuit may decide the case on standing ground, which would be good for the cause of equality.”

“Standing” is the question of whether the Proposition 8 proponents have any legitimate cause to be involved in a fight over same sex marriage, given that they are not the people most affected by it. In other words, they should mind their own business.

In Laguna Beach, gay activist Audrey Prosser is frustrated but taking a hopeful view after hearing from her friend Molly McKay of Marriage Equality, who wrote: “The great news is that the court is moving really fast for the 9th Circuit and they are asking for briefing specifically on why this case should not be dismissed for lack of standing. It means a longer wait than we had hoped, but signals that the court sees the standing issue as a major hurdle.”

I hope she’s right.

Meanwhile, if California’s gay and lesbian couples want to marry legally, they can go to the eastern states of Massachusetts, New Hampshire, Connecticut, Vermont, to Washington, D.C. or to Iowa. And their marriages will be considered legal in the great state of New York, but not here at home in California.

That is, until the U.S. Supreme Court has same-sex marriage rights on its docket. Then all bets are off — again.

CINDY FRAZIER is city editor of the Coastline Pilot. She can be contacted at (949) 380-4321 or [email protected].