August 12, 2010 / 7:55 PM / 9 years ago

California gay marriage can resume next week-judge

SAN FRANCISCO (Reuters) - A federal judge on Thursday ruled that gay marriages can resume next week in California, while his landmark ruling last week that overturned a ban on same-sex matrimony is appealed.

People rally outside a federal court house in support of California over turning a ban on same sex marriage in San Francisco, California, June 16, 2010. REUTERS/Kim White

The order to allow gay marriage will take effect at 5 p.m. PDT on Wednesday.

That will give an appeals court time to consider “in an orderly manner” whether the voter-approved ban, known as Proposition 8, should be left intact while appellate judges weigh the merits of the overall case, U.S. District Court Chief Judge Vaughn Walker ruled.

Both sides expect the case 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.

Gay rights advocates and civil libertarians have cast the legal battle as a fight for equal rights, while opponents, including many religious conservatives, see same-sex marriage as a threat to the traditional family.

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.

Thursday’s ruling left neither side completely happy.

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

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

“God’s Holy law has been trampled on by one person,” responded Viktor Choban, 27, a supporter of the ban.

Walker ruled last week that Prop 8 violates due-process and equal-protection rights under the U.S. Constitution.

On Thursday he wrote that proponents of the ban had failed to show any irreparable harm that could arise from allowing gay weddings to go forward while the matter is under appeal.

“Proponents had a full opportunity to provide evidence in support of their position and nevertheless failed to present even one credible witness on the government interest in Proposition 8,” he wrote.

NO SURPRISE

Walker’s decision to delay his ruling doesn’t come as a surprise, said Kate Kendell, executive director of the National Center for Legal Rights.

“There’s both a political dimension here, and there’s a human dimension,” Kendell said. “Walker certainly wants to avoid any sort of stutter step when it comes to the ability of people to marry and to do so with some certainty.”

A three-judge panel including two leading progressive judges is likely to decide whether to keep the ban in place for the year or more that the appeal takes. The high profile of the case may lead the panel to be cautious.

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.

Another lawyer for Protectmarriage.com said he expected an appeal of the Thursday decision later in the day or on Friday.

Reporting by Dan Levine, Courtney Hoffman, Jeremy Pelofsky, Alexandria Sage and Steve Gorman, writing by Peter Henderson, editing by Jackie Frank and Cynthia Osterman

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