U.S. Supreme Court

Gays who want to marry in California may have to wait for 25 days or more

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A U.S. Supreme Court ruling on Wednesday effectively ended California’s ban on same-sex marriages, but gays who wish to marry there may have to wait for at least 25 days.

The Supreme Court ruled that gay-marriage opponents did not have standing to appeal a ruling adverse to their ideological interests when California officials refused to do so. The result is that a decision by U.S. District Judge Vaughn Walker striking down the ban on same-sex marriage, enacted by voters in Proposition 8, remains intact.

But California officials can’t begin to issue marriage licenses until the San Francisco-based 9th U.S. Circuit Court of Appeals lifts its stay of Walker’s ruling, report the Associated Press and SCOTUSblog. And the Supreme Court’s mandate to the 9th Circuit won’t issue for at least 25 days.

California Attorney General Kamala Harris is urging the 9th Circuit to act before the mandate. “I ask that the 9th Circuit lift this stay immediately,” she said in a press release, “because gay and lesbian couples in California have waited long enough for their full civil rights.”

SCOTUSblog commentator Marty Lederman, a Georgetown law professor, has suggested Walker went too far when he granted an injunction protecting same-sex couples who were not before the court as plaintiffs. But Walker’s ruling still governs unless challenged, perhaps, by a county clerk. Lederman views that as unlikely.

“Why bother?” Lederman writes. “A county clerk knows that if he refuses to issue a marriage license, the couple in question could simply drive to another county to apply to a different clerk. Moreover, such a clerk thinking of challenging the scope of the injunction also knows that if that collateral attack were successful, the requesting couple could then bring their own constitutional lawsuit against the clerk, and would almost certainly prevail on the merits in the district court and in the 9th Circuit—especially in light of the Supreme Court’s decision today in Windsorstriking down a U.S. law banning federal benefits for same-sex married couples.

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