PAUL ELIAS and LISA LEFF | Associated Press
SAN FRANCISCO — The attorneys who successfully sued to strike down California’s same-sex marriage ban have joined state Attorney General Jerry Brown in urging a federal appeals court to quickly allow gay marriages to resume in the state.
Theodore Olson and David Boies, the high-profile lawyers representing two couples, told the appeals court that same-sex couples are being hurt every day Proposition 8 is enforced and should not be denied their civil rights while the ban’s sponsors pursue an appeal of this month’s decision overturning the 2008 measure that was approved in a referendum.
“Indeed, the only harm at issue here is that suffered by Plaintiffs and other gay and lesbian Californians each day that Proposition 8’s discriminatory and irrational deprivation of their constitutional rights remains in force,” the lawyers argued in a filing late Friday, Aug. 13.
Brown, who is the Democratic nominee for governor, said in a separate filing that there was no reason for the 9th Circuit to grant the emergency stay request because state and local agencies would suffer no harm by being required to sanction same-sex marriages. County clerks across the state already are gearing up to do so next week, he said.
The swiftly drafted 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 as unconstitutional from taking effect this 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, Aug. 18.
Protect Marriage, the coalition of religious and conservative groups that sponsored Proposition 8, has appealed U.S. District Judge Vaughn Walker’s Aug. 4 ruling that found the voter-approved law unconstitutional. After Walker said on Thursday, Aug. 12 that he planned to finalize his ruling on Wednesday at 5 p.m., the group’s lawyers 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 get married in California as early as next week or they would 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 get married 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.
Five states — Massachusetts, Connecticut, Vermont, New Hampshire and Iowa — and the District of Columbia have legalized same-sex marriage. New York and Maryland recognize those marriages even though same-sex couples can’t wed within their borders. However, the federal government doesn’t recognize same-sex marriage, nor do the vast majority of states.