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Image: same-sex couples embrace
Eric Risberg  /  AP
Same-sex couples, from left, Sarah Shuchter and April Williamson, of Pacifica, Calif., and Robert Huddleston and Chris Holler, of San Francisco, react after learning that they will have to wait for at least another six days before they can wed legally in California.
NBC, msnbc.com and news services
updated 8/12/2010 9:57:41 PM ET 2010-08-13T01:57:41

The sponsors of California's gay marriage ban asked an appeals court late Thursday to stop a federal judge's order allowing same-sex weddings to begin next week.

The lawyers defending Proposition 8 asked the 9th U.S. Circuit Court of Appeals to impose a stay that would halt gay marriages while the court considers the judge's earlier ruling that struck down the ban.

U.S. District Judge Vaughn Walker last week overturned Prop. 8, passed by California voters in 2008, saying it was unconstitutional.

On Thursday, Walker then ruled that same-sex couples could begin marrying next Wednesday unless the appeals court steps in.

That ruling left neither side completely happy.

San Francisco City Hall's steps were lined with gay couples and their supporters hoping for an immediate green light from Walker to wed.

"I think they should have lifted the stay today," said James Olivera, 58, a gay marriage supporter, on the steps of City Hall.

But Viktor Choban, 27, a opponent of same-sex marriage, responded: "God's Holy law has been trampled on by one person."

Read judge's ruling on stay (PDF)

Walker's decision means gay and lesbian couples will have to wait at least six more days before they can get married. Opponents had until 5 p.m. Aug. 18 to appeal to the 9th U.S. Circuit Court of Appeals on whether gay marriage should resume. Gay marriages could happen at that point or be put off indefinitely depending on how the court rules.

Walker struck down the state's voter-approved gay marriage ban last week in a case both sides expect eventually to be appealed up to the U.S. Supreme Court, giving the California legal battle national importance. The case against Prop 8 marks the first major challenge in federal court to a state law barring marriage between same-sex couples.

Charles Cooper, the lead trial attorney for Protectmarriage.com, a supporter of Prop 8, said he expected the appeals court to support voters behind the ban. "The decision whether to redefine the institution of marriage is for the people themselves to make, not a single district court judge, especially without appellate scrutiny," he said in a statement.

Cooper said his legal team intends to ask the appeals court to immediately impose a stay of Walker's ruling, a move that would halt gay marriages while the case is pending before the 9th Circuit.

Image: Gay marriage in San Francisco
Eric Risberg  /  AP
Victor Choban, left, of Sacramento, Calif., and Richard Otterstad, right, of Oakland, Calif., hold up protest signs outside San Francisco City Hall on Thursday as a federal judge prepared to rule on whether gay marriages should resume immediately in the state.

Dozens of gay marriage supporters who had gathered outside San Francisco's City Hall, a block from the federal courthouse, erupted in cheers when the decision came out. The crowd included a handful of same-sex couples who had arrived early Thursday morning to fill out marriage license applications in hopes that the judge would allow nuptials to commence immediately.

Teresa Rowe, 31, and her partner, Kristin Orbin, 31, said they were overall still happy with the decision even though the ceremony didn't happen.

"It's sad that we have to wait a little longer, but it's been six years," Rowe said.

Some people among the crowd protested Walker's ruling Thursday.

"It's a really sad day for Californians, for families, for our future and for voters that a federal judge has trampled on the civil rights of voters," said Luke Otterstad, 24, of Sacramento.

In his original ruling overturning Prop 8, Walker moved to suspend gay weddings until he could consider arguments from both sides on whether the marriages should be allowed during an appeal of his ruling. He now says gay marriage should resume, but he gave conservatives the extra time to get the appeals court to weigh in.

California voters passed Proposition 8 as a state constitutional amendment in November 2008, five months after the California Supreme Court legalized same-sex unions and an estimated 18,000 same-sex couples already had tied the knot.

Lawyers for gay couples, California Gov. Schwarzenegger and Attorney General Jerry Brown filed legal motions Friday asking that same-sex marriages be allowed to resume immediately.

Walker said on Thursday that ban proponents didn't convince him that anyone would be harmed by allowing same-sex marriages to resume.

"The evidence at trial showed, however, that Proposition 8 harms the state of California," Walker said.

Walker also turned aside arguments that marriages performed now could be thrown into legal chaos if Proposition 8 is later upheld by an appeals court.

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But Walker said such weddings would appear to be legal even if the ban is later reinstated. He pointed to the 18,000 same-sex couples who married legally in the five months that gay marriage was legal in California as proof.

Walker also said that no one can claim harm by allowing same-sex weddings to go forward, but banning them harms gays.

Finally, Walker said it also appears doubtful that the opponents of the ban have any right to appeal his decision striking down a state law that he said should have been defended by either Gov. Schwarzenegger and Attorney General Brown.

Schwarzenegger and Brown each last week urged Walker to allow same-sex marriages to resume immediately and its unlikely they will join the appeal of Proposition 8.

"I am pleased to see Judge Walker lift his stay and provide all Californians the liberties I believe everyone deserves," Schwarzenegger said after the ruling.

The case now appears headed to a special "motions panel" of three judges at the appeals court, the largest and busiest federal appeals court in the nation with jurisdiction over nine western states.

The panel consists of two judges appointed by Democrats and a third by a Republican.

President Ronald Reagan appointed Judge Edward Leavy to the appeals court in 1987. Leavy, who is semi-retired, has served as judge in the state and federal courts in Oregon since 1957.

President Bill Clinton nominated Judge Michael Daly Hawkins to the court in 1994 and Judge Sidney Thomas in 1995.

Hawkins, based in Phoenix, served as Arizona's U.S. Attorney under President Jimmy Carter and also worked as a special prosecutor for the Navajo Nation from 1985 to 1989.

Thomas, who keeps his chambers in Bozeman, Mont., made President Obama's short list to fill the U.S. Supreme Court vacancy that was filled last week by Elena Kagan.

A new three-judge panel will be chosen sometime next year to decide the appeal. Lawyers for both sides have been ordered to file their legal arguments by the end of the year.

Thirty-nine U.S. states have laws explicitly prohibiting gay marriage. Only five states -- Massachusetts, Connecticut, Iowa, Vermont, New Hampshire -- and the District of Columbia allow same-sex unions.

The Associated Press and Reuters contributed to this report.

Video: Prop 8 decision gives opponents time to appeal

  1. Closed captioning of: Prop 8 decision gives opponents time to appeal

    >>> breaking news in california . the federal judge who ruled last week that proposition 8 is unconstitutional said this afternoon that same-sex couples can, again, begin to marry beginning next week. but opponents of same-sex marriage tonight say, "not so fast." mara?

    >> reporter: good evening, ann. well, judge walker's ruling essentially paves the way for same-sex marriage to resume in california on wednesday. supporters outside san francisco 's city hall cheered the announcement this afternoon though that excitement was tempered a bit when they realized the stay would not be lifted immediately. now, on august 4th , judge walker overturned proposition 8th. that's the 2008 ballot initiative banning same-sex marriage in california . now at the same time he also issued a temporary stay on that ruling to give proponents of prop-8 time to appeal. today, he announced they have until august 18th to do that. otherwise the stay will be lifted and same-sex marriages will resume. now, in his decision, judge walker found that proponents of prop-8 hadn't shown that any harm would come to them if the stay were to be lifted. opponents say they are prepared to take the case to the supreme court if that's what it takes to keep same-sex marriages from continuing in california . ann?

    >> mara, thanks.

Timeline: Gay marriage

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