Huffpost Politics

Judge Walker: I Doubt Prop 8 Ruling Can Be Appealed

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SAN FRANCISCO — Attorney General Jerry Brown urged a federal appeals court Friday to waste no time in allowing gay marriages to resume in California now that a lower court has overturned the state's same-sex marriage ban.

The brief legal papers came in response to efforts by same-sex marriage opponents to get the 9th U.S. Court of Appeals to block a lower court judge's ruling striking down Proposition 8 from taking effect next week.

If the 9th Circuit refuses to intervene, it would clear the way for same-sex couples to marry starting after the close of business Wednesday.

Brown, the Democratic nominee for governor, said there was no reason for the appeals court to stay Chief U.S. District Judge Vaughn Walker's decision because the potential inconvenience to state and local agencies pale in comparison to the harm suffered by gay couples whose civil rights are being violated.

"While there is still the potential for limited administrative burdens should future marriages of same-sex couples be later declared invalid, these potential burdens are outweighed by the district court's conclusion, based on the overwhelming evidence, that Proposition 8 is unconstitutional," he said.

Theodore Olson and David Boies, the high-profile lawyers representing the two couples who successfully sued to get Proposition 8 invalidated, were scheduled to file a separate motion on the issue later Friday.

Protect Marriage, the coalition of religious and conservative groups that sponsored Proposition 8, has appealed Walker's Aug. 4 ruling that found the voter-approved law unconstitutional.

After Walker said on Thursday that he planned to finalize his ruling on Wednesday at 5 p.m., the group's lawyers also asked the 9th Circuit to prevent any gay marriages while the appeal is pending.

They argued the appeals court should grant an emergency stay "to avoid the confusion and irreparable injury that would flow from the creation of a class of purported same-sex marriages."

Depending on how the 9th Circuit rules, same-sex couples could begin tying the knot in California as early as next week or have to wait while the appeal works its way through the court and potentially the U.S. Supreme Court as well.

Walker, however, has expressed doubts over whether Protect Marriage has the right to challenge his ruling if neither the attorney general nor the governor elect to do so. Both officials refused to defend Proposition 8 in Walker's court and have since said they see no reason why gay couples should not be able to tie the knot now.

Although he allowed the group to intervene in the trial, the judge said the appellate court would have to make its own determination that same-sex marriage opponents would be injured if gay couples could wed, a claim Walker explicitly dismissed in his decision invalidating Proposition 8.

The ban's backers addressed the potential for such a roadblock in their emergency stay request, saying California's strong citizen initiative law permits ballot measure proponents to defend their interests if state officials will not.

"Proponents may directly assert the state's interest in defending the constitutionality of its laws, an interest that is indisputably sufficient to confer appellate standing," they said.

Theodore Boutrous, a lawyer with the legal team representing same-sex couples, said that keeping Protect Marriage from moving forward with an appeal was not necessarily the top priority of the plaintiffs.

"We believe that Chief Judge Walker's ruling last week on the merits provides a powerful record on appeal, and we want the appellate courts to address the merits of Proposition 8," Boutrous said. "The standing issue that Chief Judge Walker identified provides another potential weapon in our arsenal that will be part of the appellate arguments."

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 married.

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