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Judge says Gay Marriages Can Start, But Gives Time for Appeal

by Howard Mintz

A San Francisco federal judge today ruled that same-sex marriages should resume immediately in California, but put his decision on hold to give an appeals court an opportunity to consider whether to allow the marriage licenses to be issued while the legal challenge to the state's gay marriage ban proceeds.

Chief U.S. District Judge Vaughn Walker, who a week ago struck down Proposition 8 as unconstitutional, found there is no longer reason to bar same-sex couples from the equal right to wed, particularly in view of the fact that Gov. Arnold Schwarzenegger and Attorney General Jerry Brown -- the state's top officials -- agree that the marriages should be legal right away.

The judge put his order on hold until Aug. 18 for the appeals court to review the matter. Otherwise, he ordered the state to cease enforcing its ban on same-sex marriage.

The decision came as gay and lesbian couples lined up at San Francisco city hall, a few blocks away from the federal courthouse, hoping the judge would permit them to get married today.

Walker's ruling invalidating the state's voter-approved ban on same-sex marriage has already been appealed to the 9th U.S. Circuit Court of Appeals. Proposition 8 proponents have indicated they will seek an emergency stay from the San Francisco-based 9th Circuit of any order from the judge that would allow same-sex marriages to take place while the broader legal challenge proceeds, a process expected to stretch for another year or two and ultimately reach the U.S. Supreme Court.

While gay and lesbian couples have been hoping for the past two weeks to start marrying, the legal realities suggest many obstacles remain in the short term.

Legal experts predict that either the 9th Circuit or the Supreme Court is likely to put Walker's ruling on hold while appeals hash out the larger question of whether Proposition 8 tramples on the equal rights of the state's same-sex couples. Lawyers for the two same-sex couples who sued to overturn Prop. 8 argued that they should be able to marry immediately, but Proposition 8 lawyers have argued that allowing same-sex marriages in the interim could foster legal confusion across California.

And if there is a window of time when same-sex couples marry while the Prop. 8 legal challenge is on appeal, there is no guarantee those marriage licenses will remain in force if Walker's decision is ultimately overturned. Gay and lesbian couples who marry now are in a different legal posture than the approximately 18,000 couples who married during the months before voters approved Proposition 8 in November 2008 -- marriages that remain valid.

In that situation, the California Supreme Court in May 2008 had struck down the state's prior laws banning same-sex marriage. Between May 2008 and November 2008, there was no law in California barring same-sex couples from marrying and the state Supreme Court had in fact legalized gay nuptials. As a result, even when the state Supreme Court later upheld Proposition 8 in 2009, the state's high court found that the law could not be applied retroactively to those 18,000 couples who married before voters effectively wiped out the court's prior ruling.

Legal experts say marriages that would take place now are on different legal footing because while Walker has declared Proposition 8 unconstitutional, that law, which amended the state constitution, does exist on the books. If the 9th Circuit or later the U.S. Supreme Court upholds Proposition 8, legal experts say any same-sex marriages that occur after its passage would be on shaky ground.

Nevertheless, county officials across the state have been bracing for the possibility that same-sex couples will seek marriage licenses if Walker gives them the go-ahead. Santa Clara County Clerk-Recorder Regina Alcomendras said this morning her office ready for any type of marital crush.

"I've got extra staff all ready to deploy," she said, adding that she is authorized to have up to 20 employees to perform marriages. "We will be prepared for anything. We will move quickly. I'm trying to make concessions if there's a spike in volume."

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