Same Sex Marriage Put On Hold Again

Commentary by Boyce Hinman

On Monday, August 16, the other shoe dropped. In a widely expected order, the United States Court of Appeals For the 9th Circuit put the same sex marriage court decision of Judge Vaughn Walker on hold until the appeals court decides whether or not Judge Walker’s decision is correct.

It now appears that we cannot expect a decision from the appeals court until early next year, although the order did say that the court would handle the case in an “expedited” manner.

The court said that means that each side should present their cases in writing to the appeals court by September 17. Then each side is to submit their written response to the other side’s initial document by October 18. Then each side will be required to submit final arguments in writing by November.

The Court said the actual hearing on the case will be held during the week of December 6, and that it will take a minimum of several weeks to announce its decision.

The 9th US Circuit Court of Appeals has the reputation of being the most liberal appeals courts in the U.S. court system, so there is real reason to believe that they will agree with Judge Walker’s decision.

However, it is quite possible that the above appeals hearing will be conducted by only three of the 15 judges of the 9th Circuit Court of Appeals. If so, the losers in that hearing could ask that the case be heard over again by all 15 judges. That would mean more delay.

Even that will not be the end of it. Whoever loses at the appeals court level is almost certain to appeal to the U.S. Supreme Court. If that happens, it is highly likely that Judge Walker’s decision will again be put on hold until the U.S. Supreme Court makes the final decision.

If the U.S. Supreme Court rules that banning same sex marriage is unconstitutional, then same sex couples would be allowed to get a marriage license anywhere in the nation. How likely is that? It is a very dicey situation.

An article in US News and World Report says: “Four of the five most conservative justices since 1937 are on the (U.S. Supreme Court) bench today.” Those four Justices are Alioto, Roberts, Scalia and Thomas. There are four predictably liberal Justice who may well vote to overturn the ban on same sex marriage. Those are Breyer, Ginsberg, Kagan, and Sotomayor.

But you need a decision agreed to by five justices to win at the U.S. Supreme Court level. The final justice, Justice Kennedy has been a swing vote on the court, sometimes voting with the liberals and sometimes with the conservatives.

How is he likely to vote in this case? No one can be sure. However, in 1996 he wrote the decision in which the U.S. Supreme Court overturned a Colorado anti gay voter’s initiative, and in 2003, he wrote the decision in which the Supreme Court overturned Texas’ sodomy law. The Texas decision finally outlawed all state sodomy laws used against the LGBTI community.

So there is hope. But patience is a virtue.

Boyce Hinman is the founder of California Communities United Institute (CalComUI). He can be reached at This e-mail address is being protected from spambots. You need JavaScript enabled to view it or


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