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Proposition 8 In California: Federal Court Asked To Resume Gay Marriages While Case Pending

Prop 8 Gay Marriage

LISA LEFF   02/23/11 04:21 PM ET   AP

SAN FRANCISCO — Lawyers for two same-sex couples again asked a federal appeals court on Wednesday to allow gay marriage to resume in California while the court considers the constitutionality of the state's ban on same-sex unions.

The couples' attorneys filed a motion asking the 9th U.S. Circuit Court of Appeals to lift the stay it imposed in September on a trial court ruling that struck down the voter-approved ban known as Proposition 8.

The request was prompted by an "intolerable" delay created last week when the California Supreme Court said it needed the rest of the year to consider a pivotal legal question in the case – whether Proposition 8 sponsors have authority to challenge the lower court's decision, lawyer Theodore Olson said.

"The right to marry is not an abstract principle any more than might be said about the right to vote, the right to speak and the right to practice one's religion," Olson said. "Every day our fellow citizens are denied their most basic civil rights that their friends and neighbors freely enjoy ... that discrimination inflicts countless injuries."

The plaintiffs, a lesbian couple from Berkeley and a gay couple from Pasadena, also have asked the California Supreme Court to hasten its examination of the legal standing issue. The court has said it would not hear oral arguments before September, but the couples are asking the hearing to be moved up to May.

The 9th Circuit has said it can't move forward with its deliberations without state court guidance on whether ballot proposition sponsors can defend their measures in court if the governor and attorney general refuse to do so.

Former Gov. Arnold Schwarzenegger and Gov. Jerry Brown in his previous role as attorney general both declined to appeal U.S. District Court Judge Vaughn Walker's August ruling overturning Proposition 8.

Olson said the argument for allowing same-sex couples to get married while the case is on appeal received an unexpected boost Wednesday when the Obama administration said it would no longer defend the federal Defense of Marriage Act, which prohibits the U.S. government from recognizing same-sex marriages.

While not directly relevant to Proposition 8, the administration's position could help persuade the 9th Circuit that the ban's sponsors would be unlikely to prevail in their appeal, he said.

Same-sex marriages were legal in California before Proposition 8 passed in November 2008. The initiative supported by 52 percent of voters amended the state Constitution to limit marriage to a man and a woman.

The 9th Circuit does not have a deadline for responding to Wednesday's request.

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Filed by Anna Almendrala  |