Saturday, Jun 29, 2013 12:55 PM UTC

Gay marriage is back in California

The U.S. Ninth Circuit Court of Appeals took an "unusual, but not unprecedented" step in freeing couples to marry

By Lisa Leff

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Topics: Gay Marriage, prop 8, Supreme Court, SCOTUS, Gay Rights, From the Wires, News

(Credit: AP Photo/Jeff Chiu)

SAN FRANCISCO (AP) — Same-sex marriages that were outlawed in California 4 1/2 years ago resumed in a rush after a federal appeals court took the “unusual, but not unprecedented,” step of freeing couples to obtain marriage licenses, before the U.S. Supreme Court had issued its final judgment in a challenge of the state’s voter-approved gay marriage ban.

Within hours of the appeals court’s action Friday, the four plaintiffs who in 2009 sued to overturn the ban had exchanged vows during hastily arranged ceremonies that drew crowds of well-wishers as the news spread that the weddings were back on.

“I was at work,” lead plaintiff Kristen Perry said, adding that she rushed home to Berkeley to change into a gray suit so she could marry her now-wife Sandra Stier at San Francisco City Hall.

California Attorney General Kamala Harris declared Perry and Stier “spouses for life” as hundreds of supporters looked on and cheered from the balconies ringing the couple’s perch under City Hall’s rotunda. The other couple in the Supreme Court case, Paul Katami and Jeff Zarrillo, was married at Los Angeles City Hall 90 minutes later wearing matching white rose boutonnières and with Mayor Antonio Villaraigosa presiding.

“Your bravery in the face of bigotry has made history,” said Villaraigosa, who was pulled from his last day in office tour of the city to officiate the impromptu wedding.

Although the couples fought for the right to wed for years, their nuptials came together in a flurry when a three-judge panel of the 9th U.S. Circuit Court of Appeals issued a brief order Friday afternoon dissolving a stay it had imposed on gay marriages while the lawsuit challenging the ban advanced through the courts.

The legal fight concluded Wednesday when the Supreme Court ruled 5-4 that Proposition 8′s sponsors lacked standing in the case after Harris and Gov. Jerry Brown, both Democrats, refused to defend the ban in court. The decision lets stand a trial judge’s declaration that the ban violates the civil rights of gay Californians and cannot be enforced.

The high court said, however, that it would not finalize its ruling “at least” until after the 25 days the ban’s backers have under the court’s rules to seek a rehearing. The 9th Circuit was widely expected to wait until the Supreme Court’s judgment was official before clearing the way for same-sex marriages to start again.

The ban’s sponsors, who like gay marriage supporters were caught off-guard, complained that the San Francisco-based 9th Circuit’s swift action made it more difficult for them to ask the Supreme Court to reconsider its decision.

“The resumption of same-sex marriage this day has been obtained by illegitimate means. If our opponents rejoice in achieving their goal in a dishonorable fashion, they should be ashamed,” said Andy Pugno, general counsel for a coalition of religious conservative groups that sponsored the 2008 ballot measure.

“It remains to be seen whether the fight can go on, but either way, it is a disgraceful day for California,” he said.

Ninth Circuit spokesman David Madden said Friday that the panel’s decision to act sooner was “unusual, but not unprecedented,” although he could not recall another time the appeals court acted before receiving an official judgment from the high court.

The panel – Judge Stephen Reinhardt, who was named to the 9th Circuit by President Jimmy Carter and has a reputation as the court’s liberal lion; Judge Michael Daly Hawkins, an early appointee of President Bill Clinton; and Judge Randy Smith, the last 9th Circuit judge nominated by President George W. Bush – decided on its own to lift the stay, Madden said.

Its order read simply, “The stay in the above matter is dissolved effective immediately.”

Vikram Amar, a constitutional law professor at the University of California, Davis, said the Supreme Court’s 25-day waiting period to make its decisions final isn’t binding on lower courts.

“Some people may think it was in poor form, But it’s not illegal,” Amar said. “The appeals court may have felt that this case has dragged on long enough.”

The same panel of judges ruled 2-1 last year that Proposition 8 was unconstitutional, but it kept same-sex marriages on hold while the case was appealed. But when the Supreme Court decided Proposition 8′s backers couldn’t defend the ban, it also wiped out the 9th Circuit’s opinion.

Proposition 8 passed with 52 percent of the vote in November 2008, 4 1/2 months after same-sex marriages commenced in California the first time. The Williams Institute, a think tank at the University of California, Los Angeles, estimates 18,000 couples from around the country got married in the state during that window.

Shortly after the appeals court issued its order Friday, the governor directed California counties to resume performing same-sex marriages. A memo from the Department of Public Health said “same-sex marriage is again legal in California” and ordered county clerks to comply by making marriage licenses available to gay couples.

Robert Meadows and his partner, Craig Stein, were among those who hurried to City Hall to see Stier and Perry tie the knot. They ended up deciding to get married themselves on the spot.

“We came down here just to watch when we heard the news,” Meadows said. “But then we saw the lines weren’t too long and we went for it. We’ve been wanting to get married forever.”

Hours before Pam Shaheen and Mary Beth Gabriel said “I do” in front of throngs of onlookers and media late Friday afternoon, they were having drinks at a nearby cafe, not expecting marriages to resume so quickly. Twenty years ago they met in New Orleans. Days ago they were on the steps of city hall, awaiting the Supreme Court’s decision.

After holding her marriage certificate in the air, Shaheen said she hoped California’s example would spread to other states.

Given that word did not come down from the appeals court until mid-afternoon, most counties were not prepared to stay open late to accommodate potential crowds. The clerks in a few counties announced that they would stay open a few hours late Friday before reopening Monday.

A jubilant San Francisco Mayor Ed Lee announced that same-sex couples would be able to marry all weekend in his city, which is hosting its annual gay pride celebration.

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Associated Press writers Jason Dearen, Paul Elias, Mihir Zaveri and Shaya Mohajer in Los Angeles contributed to this story.

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