Fighting Prop 8: Lawyers Ask Court To Lift Stay On Gay Marriage Ban

WASHINGTON -- In the wake of the Obama administration's decision Wednesday to cease its legal defense of a federal ban on gay marriage, gay-rights advocates are looking to lift the notorious state-level ban in California that remains in place during a protracted appeals process even after being declared unconstitutional.

The American Foundation for Equal Rights, a group founded to overturn Proposition 8, the 2008 California ballot initiative that prohibited gay marriage, filed a motion Wednesday asking the Ninth Circuit U.S. Court of Appeals to end its stay of the ban. A Ninth Circuit judge struck down Proposition 8 in August, but left it in effect pending appeal efforts. The Supreme Court of California agreed last week to consider the issue, but will not hear oral arguments until next fall.

The foundation argued the stay should be lifted given the long timetable for a final decision on the law, claiming the ban will deal damage to gay families in the meantime.

"You can't just say 'Wait six months and then you'll get your constitutional rights,'" Theodore Olson, co-lead counsel for the rights organization, said during a conference call with reporters Wednesday. "Continuing to separate them out as a different class is harmful every day."

Word of the filing came just hours after President Barack Obama announced that he considers the Defense of Marriage Act, a federal law that defines marriage as between a man and a woman, to be unconstitutional. The Justice Department will no longer defend the law in court.

The fight over Prop. 8 features some interesting parallels with Obama's move on DOMA. In August, key California officials, including former Gov. Arnold Schwarzenegger and current Gov. Jerry Brown, then the attorney general, decided not to defend the ban against further legal battles.

In their place, proponents of Prop. 8 have tried to appeal the ruling, but it remains unclear whether they have the legal authority to do so. The federal appeals court asked the state supreme court to first rule on whether the groups can appeal, possibly long delaying a final ruling.

Last week, the American Foundation for Equal Rights filed a request with the state supreme court to expedite its ruling, but the foundation has grown more impatient with the ongoing delays.

"It would be one thing to have a stay if the determination was going to come relatively shortly ... now it's going to take considerably longer to get this resolved, so we think it's appropriate to ask the Ninth Circuit Court" to end its order preventing gay marriage, said David Boies, AFER's other lead counsel.

Although it is unclear when the courts will respond to the requests, the lawyers said Obama's announcement on DOMA could help their case.

"I think the combination of what the California Supreme Court did by suggesting it might take up to a year to resolve the procedural questions and what the U.S. government did today might induce the Ninth Circuit Court to respond very quickly," Olson said.

Comments

[CAMBEL]

02:37 PM on 03/01/2011

could somebody please point out to me the news stories about the States of Massachusetts, Iowa, Vermont, etc... being destroyed by fire and brimstone...

I must have missed those stories.

I mean we were told that the legalization of gay marriage would lead to their ruination weren't we? In fact, Ca. the state that ENDED gay marriage is in MUCH worse financial shape then any of the states that still have it.

[MarkBoston]

11:47 PM on 02/24/2011

I feel fortunate to be living in Massachusetts the last 38 years. It's peoples are enlightened and morally fair minded . Gays and Straights are completely equal here. We were the first in the nation to have equal marriage . it set THE precedence . We are also fortunate that we do not have the crazy religious groups here to fight every civil right we win . We only get the imported crazies bused in from Alabama to picket in small numbers.. and they are SO over the top it actually works in our favor .

[Wizer]

02:27 PM on 02/25/2011

Yes, but what you do not have and I do not have is 1338 federal rights afforded to a straight marriage. A few to mention: Social Security survivor benefits, military pensions, federal hc ins (if one of couple is employed by the feds), military hc insurance (TRICARE) afforded to straight married couples but not SSM. A lot of the rights that straight marriages have, we have to hire an attorney and enter into a contract to get it all on paper legally.

Until DOMA goes away, there is little benefit of SSM.

[JSDKoeln]

08:40 AM on 02/28/2011

I am all in favor of the good work Mass has done to make gays equal to their straight counterparts--however, most benefits are federal and not state sanctioned. I'm an expat in a SSM in Germany, and even though it's called a life-partnership, we're still granted more rights at a federal level than in the US. Immigration being the most important to us. My worry is that it's going to be yet another hot-button issue for the 2012 election and prez O will be forced to take the wrong side just to be reelected. I keep holding out for hope that SSM will be legalized there--but it's becoming insane. Expecting a different result when the same thing happens over and over. I'm becoming less and less hopeful. Hopefully I'm wrong! ;-)

[eyecon]

08:49 PM on 02/24/2011

I love to scan comments. Behold the NOM talking points.

Brian Brown once complained that, if gay marriage is legal then he will be officially a bigot. I wrote him to stop being a bigot and mitigate the damage. He wrote back some hokum about religious freedom and procreative marriage.

Keith O. always commented that this was the dumbest controversy imaginable and he is right. I have yet to entertain a remotely rational argument that one couple's gay marriage has any effect, whatsoever, on any other couple's "traditional" marriage.

Oh and Brown stopped returning my email after I outed him as a member of Opus Dei (long before HRC). That offense required public punishment in one of their email blasts. I LMAO.

[Sharon Love]

07:13 PM on 02/24/2011

Let same-sex couples marry? Next thing you know, they'll let interracial couples marry. Love is love.

[Contact1972]

06:15 AM on 02/25/2011

Well said Ms. Love:-)

[Sharon Love]

03:25 PM on 02/26/2011

Thanks! The laws need to get with the times.

[MarcoLuxe]

05:59 PM on 02/24/2011

The 9th Circuit was wrong [and cowardly] to issue a stay, as the proponents didn't meet the clear criteria to be granted a stay. I think Boies and Olsen need to hammer this point, at least in the press. The 4 criteria for a stay are clear, and are read collectively. The Court considers: (1) whether the stay applicant is likely to succeed on the merits of the appeal; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.

Considering the former governor, the current governor, the current state's attorney general and now the federal Department of Justice do not support the proponents of Prop 8, along with Judge Walkers clear and untempered findings against Prop 8, it seems likely they won't prevail on the merits [1]. J. Walker found no harm to the proponents, as no one could be found whose own marriage would be irrevocably injured by marriage equality [2]. There are no injuries to the proponents, and thus no injuries to other third parties [3]. The public interest can be interpreted broadly, but as equality before the law is primary in the realm of the public interest, it seems at most uncertain that the public interest favors the proponents [4]. Granting the stay was not based on jurisprudential principles, but on other irrelevant factors, and should be vacated....now.

[Sarah Skloot]

03:06 PM on 02/24/2011

Justice For All.LGBT people are sill waiting for this in all states.

[Contact1972]

06:10 AM on 02/25/2011

And still waiting for the Federal benefits

[SVPincalif]

12:34 PM on 02/24/2011

I don't understand what is so scary about allowing every one the right to marry? How can this possibly harm anyone?

[feed the enemy]

01:20 PM on 02/24/2011

Many gay haters are unsure of themselves.

[antaeus]

03:25 PM on 02/24/2011

"most"

[eyecon]

09:01 PM on 02/24/2011

SOMEBODY has to buy those Justin Bieber posters.

[SVPincalif]

12:32 PM on 02/24/2011

Evolution takes time but eventually the strongest survive...which in this case means equality for everyone or no one! But people don't seem to get it that if you make a law limiting the rights of anyone, you are limiting your own rights!!!

[Tails]

12:13 PM on 02/24/2011

This is all very funny because my generation [I'm 21] have grown up around openly gay people and well... it's not very scary.

Of course, it'll take the GOBP another ten years to get a new talking point.

[LeftRight]

05:34 PM on 02/24/2011

Wow... You think they'll give it up that quickly?

[eyecon]

09:03 PM on 02/24/2011

Congratulations for being a critical thinker. You are exhibit A of why "they" are obsessed with home schooling.

[Wizer]

02:29 PM on 02/25/2011

You've got that right. The r's are h 3 // bent on eliminating the Dept of Education for a reason.

[Freud2010]

10:39 AM on 02/24/2011

California voted. The people spoke. Let it go now. We voted to prevent them from getting married.

[TBJ]

10:42 AM on 02/24/2011

Tyranny of the majority against a minority. The vote should not have been allowed. That's why it went to court.

[shryock]

10:44 AM on 02/24/2011

problem, of course, is that voters cannot vote to take away someone's rights.
even if they think they can.

[POR4319]

10:10 AM on 02/24/2011

If marriage is meaningless and it make no difference with whom or what we have sex with I suppose this makes sense. But if gays can get married I'm love to know why you can marry many people or why prostitution is illegal. It seems to me that marriage exists for a reason. If that reason no longer has meaning in today's fine, but it seems that is not what folks are really looking for.

[EmmaDarian]

10:16 AM on 02/24/2011

Just to pull out a single "point," you said you think marriage exists for a reason. Ok, what do you think that reason is?

I have no idea why you brought prostitution into this, and perhaps you could explain that as well.

By the way, I am a heterosexual married woman living in the first state in the US to legalize marriage for same-sex couples, and my marriage is just as strong and healthy and meaningful as it ever was. Don't know why it's meaningless to you.

[POR4319]

11:28 AM on 02/24/2011

If your sexual preference is sleeping with strange women - who are you to judge??

[TBJ]

10:24 AM on 02/24/2011

Marriage is what you make of it. The law doesn't make it so that two people getting married are deeply in love and have a large, happy family. You can get married to a Vietnamese h0oker at 3 AM in Las Vegas for all the law cares. Hopefully people get married for (much) better reasons, but you can't make laws based on the ideals. You can't identify, much less force, idealism.

And this is about two people of identical gender getting married. Not polygamy or prostitution.

[Ioan Lightoller]

05:25 PM on 02/24/2011

Wish I could fan you again! The fact is that ANY two individuals can marry, for any reason, as long as they are of the opposite sex.

I would like to know why the bigots always veer off into things like polygamy or prostitution? Could it be because they have NO real argument?

[POR4319]

09:58 AM on 02/24/2011

yuk...

[Gepids]

10:12 AM on 02/24/2011

Thanks you have just articulated the main reason for support of Prop 8, you just don't like gays and lesbians. But the Constitution supercedes "yuk" in court.

[Yikesits]

10:33 AM on 02/24/2011

thanks for a great laugh.

[blacksmithn]

10:49 AM on 02/24/2011

Nicely done.

[Ioan Lightoller]

05:26 PM on 02/24/2011

You'll get over it....I hope. But your squeamishness of lack thereof should not determine my rights.

[martiniandabotoxchaser]

09:20 AM on 02/24/2011

Gay marriage should have never been put to a vote.  It is like putting segregation to a vote in the early 1960s in the deep South.  Our courts and Constitution exist to protect the rights of the minority against the majority.  As so many Federal rights and State rights are attached to the institution of marriage such as joint taxes, social security death benefits and joint custody of children, marriage is a civil right of all Americans...not just those who choose a partner of the opposite sex.

[Scott Yardley]

09:13 AM on 02/24/2011

This is a debated between the a small vocal group and legislators. The people of the State of California have spoken with a citizen led initiative. They don't want gay marriage.
In this case the State of California is doing exactly what the majority of their constituents are asking of them.

But is this a human rights issue like black rights?
No. A black person is born that way and he/she and it is a healthy variant of humanity.
Are people born gay?
Well, they say there's a gay gene. But, so what? Scientist have also isolated a fat gene, an addition gene and a stupid gene (Google it). Just because the gene pool has a variant does that mean it is a healthy variant. It can just a well be a mutant variant. Since my father died of cancer, I am genetically more likely to die of cancer. Should I embrace my genetics or should I fight against my weaknesses. Maybe I should march in the streets at a cancer pride day? Should people with a fat gene embrace their genetic bent and hasten their death? Should schools teach children that heroin addiction is a healthy life style option because there's an addiction gene?
Homosexuality is a self destructive lifestyle like obesity and addiction. Is there a gay gene? If so, it's a mutant variant which needs to be resisted.
This is not a civil right issue and the people have already voted against it.

[holapapi]

09:41 PM on 02/24/2011

"Homosexual­ity is a self destructiv­e lifestyle like obesity and addiction."

So by your own logic we should legislate against overweight people. What would you have us do with the overweight people, ration their food to overcome that "destructive lifestyle"? Force them to exercise?

Also, what would you have us do with those terrible addicts? Should we legislate against their ability to buy whatever product (or participate in whatever act) they're addicted to?

We know what your ideal government would do about the homosexuals. What would your ideal government do with the addicts and overweight? I'm genuinely curious.

[Scott Yardley]

11:25 PM on 02/24/2011

Read my words, don't lead my words.

The purpose of law is to protect. When someone else is hurt by compulsive behavior only then does legislation needs to step in.

If gays want gay sex, they have the right to do so. It's their body to build or destroy. I'm not taking about sodomy laws. If you want sodomy, you have that freedom, but don't force sodomy upon everyone else.

The gay movement currently forces their dogma teaching upon our children, in our schools, that homosexuality is healthy. This is no different than teaching them that obesity and addiction is healthy. It is imposing, selfish and intollerant. It destroy children should be against the law.

We should not teach society through our school or by government recognition of gay marriage that homosexuality if good them.

[Bob Kellerman]

10:30 PM on 02/24/2011

JUST LIKE THE COOL KIDS OSTRACIZING THE GEEKS

--- very fair and mature (not)

[Scott Yardley]

05:19 PM on 02/25/2011

not Not NOT
nice reply (not).
You have something to add to this discussion (not)
When in doubt ... you guest it "not"

[jeremyfive]

09:09 AM on 02/24/2011

Maybe we can keep that corrupt political party MormonChurch out of it this time? Someone please stop this political party from stealing our tax dollars as though they were a "church" and not a political party that activey advocates causes, raises funds specifically for political activity, and spends outrageously in states where they do not reside for their political advancement.

It is time to kill the corrupt political party MormanChurch.

[Yikesits]

10:34 AM on 02/24/2011

If we can't kill it, we should tax it to death.

[Southern Yankee]

11:07 AM on 02/24/2011

Yay! Makes sense to me. Let's vote on it and see what they do. Maybe we can just bankrupt them.

[talkstocoyotes]

11:16 AM on 02/24/2011

It's past time to start taxing religious institutions. After all, religion is a choice; not something a person is born with so those breaks should definitely be on the spending chopping block. We can't any longer afford to support anyone's lifestyle choice with tax breaks.

[MagCA68]

01:26 PM on 02/24/2011

NOM, national organization for marriage is still heavily funded by individuals from the mor(m)on church. They are the main group who have been airing all of those deceitful ads in each state, and who also led the successful campaign to oust three of the judges in Iowa who voted unanimously to legalize marriage.

[Ioan Lightoller]

05:27 PM on 02/24/2011

Sad that people will spend so much money to preserve hate...especially when they have been victims of persecution and oppression in the past themselves.