Federal appeals court asked to allow same-sex marriages to resume in California

Posted on 23 Feb 2011 at 2:11pm
Ted Olson

The American Foundation for Equal Rights, which is challenging Proposition 8 in federal court, today asked an appeals court to lift its stay blocking same-sex marriages in California and allow them to resume immediately pending the outcome of the case.

In August, the U.S. Court of Appeals for the Ninth Circuit stayed an injunction barring enforcement of Prop 8, California’s ban on same-sex marriage. However, AFER argues in its motion filed today that due to delays in the Prop 8 case, Perry v. Schwarzenegger, the stay should be lifted.

AFER’s request is unrelated to today’s announcement by the Obama administration calling a portion of the Defense of Marriage Act unconstitutional and saying the Department of Justice will no longer defend DOMA in federal court.

“We are respectfully asking the Court to lift its stay on marriage for gay and lesbian couples because it has become apparent that the legal process is taking considerably longer than could reasonably have been anticipated,” said Theodore B. Olson, co-lead counsel for AFER. “It’s important to remember that the stay was originally ordered with the understanding that the Ninth Circuit would rule swiftly on the case before it. Now that the issue of the Proponents’ standing to appeal has been referred for analysis by the California Supreme Court, substantial additional, indefinite and unanticipated delays lie ahead. It’s unreasonable and decidedly unjust to expect California’s gay and lesbian couples to put their lives on hold and suffer daily discrimination as second class citizens while their U.S. District Court victory is debated further.”

Read the full press release after the jump.

AFER Asks U.S. Court of Appeals to Lift the Stay on Marriage for Gay and Lesbian Couples

San Francisco —Today, the American Foundation for Equal Rights (AFER) and its legal team — led by Theodore B. Olson and David Boies — filed a motion with the United States Court of Appeals for the Ninth Circuit asking that the Court immediately lift an order preventing gay and lesbian couples from marrying in California. That order, issued in August 2010, stayed the injunction issued by the U.S. District Court that barred further enforcement of Proposition 8.

This comes on the heels of a request last Thursday by AFER to the California Supreme Court to expedite the hearing of questions relating to the standing of Proponents to maintain an appeal in federal court. AFER’s attorneys urged the California Supreme Court to hear arguments in May, rather than September.

“We are respectfully asking the Court to lift its stay on marriage for gay and lesbian couples because it has become apparent that the legal process is taking considerably longer than could reasonably have been anticipated,” said Theodore B. Olson, co-lead counsel for AFER. “It’s important to remember that the stay was originally ordered with the understanding that the Ninth Circuit would rule swiftly on the case before it. Now that the issue of the Proponents’ standing to appeal has been referred for analysis by the California Supreme Court, substantial additional, indefinite and unanticipated delays lie ahead. It’s unreasonable and decidedly unjust to expect California’s gay and lesbian couples to put their lives on hold and suffer daily discrimination as second class citizens while their U.S. District Court victory is debated further.”

In August 2010, the U.S. District Court declared Proposition 8 — which eliminated marriage rights for same-sex couples — unconstitutional and “gravely harmful” and ordered the State to cease all enforcement of it. The Ninth Circuit, however, has stayed that injunction for the duration of the appeal before that Court, depriving tens of thousands of gay and lesbian Californians of their fundamental constitutional right to marry.

Last month, the Ninth Circuit asked the California Supreme Court to resolve procedural questions relating to Proponents’ standing to maintain their appeal. Last week, the California Supreme Court said it would not hear arguments before September, meaning that the procedural question might not be resolved until December 2011.

“These delays due to procedural technicalities are extraordinarily harmful and need to be resolved,” said Julian Bond, chairman emeritus of the NAACP National Board of Directors and AFER Advisory Board Member. “We’re talking about delaying basic civil rights which is adversely affecting tens of thousands of Californian couples and families in a real way, on a daily basis. It’s simply not acceptable to continue state-sanctioned discrimination and second-class citizenship. Equality delayed is equality denied.”

Gay and lesbian couples have been denied the right to marry since Prop 8 passed in November 2008.

“After a full trial, the U.S. District Court ruled unequivocally that Proposition 8 violates the Constitution’s guarantee of equal protection under the law and harms thousands of gay and lesbian couples and their families,” said Chad Griffin, AFER Board President. “While the courts determine procedural questions, gay and lesbian families will continue to suffer. Life is not eternal—sometimes it is tragically short—and courts should not act as if it were otherwise. Today we are requesting the California Supreme Court to quickly resolve the issue of standing, and the Ninth Circuit to allow marriages to resume.”

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