Attorney General Kamala Harris Asks To Resume Gay Marriage
SAN FRANCISCO — California's attorney general on Tuesday joined lawyers for two same-sex couples and the city of San Francisco in asking a federal appeals court to allow gay marriages to resume while the court considers the constitutionality of the state's voter-approved ban.
The latest offensive against Proposition 8 came when state Attorney General Kamala Harris told the 9th U.S. Circuit Court of Appeals in a letter that sponsors of the measure approved in 2008 were unlikely to prevail in their appeal of a trial judge's ruling last year that struck it down.
Keeping Proposition 8 in effect therefore is a fruitless violation of gay Californians' civil rights, Harris said.
"The public interest weighs heavily against the government sanctioning such discrimination by permitting it to continue," she wrote.
The move also came as supporters of gay marriage grow impatient with the slow pace of court proceedings. The California Supreme Court reiterated Tuesday that it would take at least until the end of the year to consider a legal question asked by the federal court as it tries to resolve the appeal.
Gay marriages have remained on hold until the 9th Circuit decides the appeal.
Lawyers for the gay couples who successfully sued in the lower court petitioned the appeals court last week to lift the hold, as did the city of San Francisco.
Harris also said the case for allowing gay marriages was bolstered by the Obama administration's announcement last week that 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 new position "substantially diminished" the likelihood the measure's sponsors will be successful in their effort to get the lower court ruling overturned, she said.
"Events have demonstrated that if the stay ever was justified, it is no longer," Harris said in her letter.
Andy Pugno, legal counsel for the coalition of religious and conservative groups that put Proposition 8 on the November 2008 ballot and campaigned for its passage, disputed the attorney general's contention that the prospects for a successful appeal were any more dim now than they were last summer.
"It's a highly politicized case, and this is just a reminder that we need the initiative process exactly because state officials sometimes refuse to do their job," Pugno said. "The fact that President Obama has made a carefully calculated political decision in no way changes the law and the role of the court to decide Prop 8's validity."
Harris, a Democrat who previously served as San Francisco's district attorney and who was a strong supporter of Obama's in 2008, succeeded Gov. Jerry Brown as attorney general in January. Brown had refused to defend Proposition 8 in his previous role, as did then-Gov. Arnold Schwarzenegger.
Last year, both men asked the 9th Circuit to let gay couples marry during the appeals process.
The push by Harris to quickly get same-sex marriage reinstated in California could further enflame conservative activists angered by the administration's declaration that it considered the Defense of Marriage Act unconstitutional.
The president of the Family Research Council, a Washington-based advocacy group that champions marriage and family as the foundation of civilization, said Tuesday it suspected the government was colluding with lawyers in the Proposition 8 case.
As evidence, group's president Tony Perkins pointed out that lawyers for the two California couples asked the 9th Circuit to lift its stay just a few hours after U.S. Attorney General Eric Holder announced the administration's new position on the federal act. Perkins asked the government to provide records of any contact the Justice Department might have had with the attorneys.
"Even the appearance of collusion between the Department of Justice and litigants is highly damaging to the rule of law in America," Perkins wrote.
The couples' lawyers have said the timing was coincidental, noting they scheduled a news briefing on their 9th Circuit petition the night before Holder's surprise announcement.
Chad Griffin, president of the American Foundation for Equal Rights, which is funding the challenge to Proposition 8, said Harris' endorsement of allowing same-sex marriages to resume demonstrates that gay people are being hurt while the ban remains in effect.
"Life is not eternal – sometimes it is tragically short – and courts should not act as if it were otherwise," Griffin said. "Allowing the U.S. District Court's landmark decision to enter into effect will not harm anyone, but will alleviate the suffering of countless families and their children."
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.
Because the governor and attorney general refused to defend the law on appeal, its sponsors have asked the 9th Circuit to allow them to do so.
But the federal court panel considering the case has said it needs the state court's guidance on whether ballot proposition sponsors can defend their measures in court if state officials will not.
The state court has said it plans to hear oral arguments on the issue in September.
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LISA LEFF 03/ 1/11 10:32 PM ET Associated Press