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Ninth Circuit refuses to lift same-sex marriage ban

The US Court of Appeals for the Ninth Circuit [official website] on Wednesday denied [order, PDF] a motion [text, PDF] to lift the stay order prohibiting gay couples from marrying while an appeal of the invalidation of Proposition 8 [text, PDF; JURIST news archive], California's same-sex marriage ban, is pending. The court relied on the Supreme Court ruling in Nken v. Holder [opinion text], which explains the standards for staying a court order on appeal, and the standard for vacating a stay order articulated in the Ninth Circuit precedent Southeast Alaska Conservation Council v. U.S. Army Corps. of Engineers [opinion text]. California Attorney General Kamala Harris [official website] asked the court to lift the stay [JURIST report] earlier this month, arguing that the appeal is unlikely to succeed in light of jurisdictional concerns [JURIST report] and the recent US Department of Justice (DOJ) [official website] decision to stop defending the constitutionality [JURIST report] of portions of the Defense of Marriage Act (DOMA) [text; JURIST news archive] on the grounds that laws concerning sexual orientation should be subject to a higher standard of review. A three-judge panel for the Ninth Circuit issued the stay [JURIST report] in August.

After being asked [JURIST report] by the Ninth Circuit to weigh in, the Supreme Court of California [official website] announced last month that it will decide whether supporters of Proposition 8 have standing [JURIST report] to defend the measure when state officials have refused to do so. When Judge Vaughn Walker of the US District Court for the Northern District of California [official website] struck down Proposition 8 [JURIST report], then-governor Arnold Schwarzenegger and former attorney general and current Governor Jerry Brown [official website], who were originally defendants in the lawsuit, refused to continue defending the measure on appeal [JURIST report], leaving defendant-intervenors Project Marriage [advocacy website] and other groups to defend the law. In January, the Ninth Circuit also upheld [opinion, PDF] a lower court decision refusing to allow officials from Imperial County, California [JURIST report] to intervene, and Judge Stephen Reinhardt issued a memorandum opinion [text, PDF] on his decision not to recuse himself [JURIST report]. The Ninth Circuit heard oral arguments [video; JURIST report] in the case, Perry v. Schwarzenegger [case materials] in December. The hearing was divided into two one-hour sessions, with the first section focusing on the issue of standing and the second on Proposition 8's constitutionality.

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