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Prop. 8 opponents ask court to lift ban on gay marriage

American Foundation for Equal Rights lawyers Ted Olson and David Boies are shown in this photo.

American Foundation for Equal Rights lawyers Ted Olson and David Boies filed a motion with the 9th U.S. Circuit Court of Appeals on Feb. 23 asking that it immediately lift its order preventing same-sex marriages in California.

That order, issued in August 2010, temporarily blocked an injunction from U.S. District Judge Vaughn Walker that barred further enforcement of Proposition 8.

Walker issued the injunction after finding that Prop 8, via which voters amended the state constitution in 2008 to re-ban same-sex marriage, violates the U.S. Constitution.

“The stay was originally ordered with the understanding that the 9th Circuit would rule swiftly on the case before it,” said Olson. “Now that the issue of the Prop. 8 proponents’ standing to appeal has been referred (by the 9th Circuit) 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.”

The huge delay was introduced into the case Feb. 16 when the California Supreme Court agreed to answer a question sent to it by the 9th Circuit.

The federal court asked the state court if the people who put Prop 8 on the ballot have any legal right, under California law, to be in court arguing to overturn Walker’s decision.

The California Supreme Court’s answer would be taken into consideration by the 9th Circuit judges when they decide whether to grant the Prop 8 supporters federal “standing” to appeal. Those proponents need standing because everyone who was sued in the federal Prop 8 case, including California’s governor and attorney general, have refused to defend Prop 8.

The problem in all this, for Olson, Boies and AFER, is that in agreeing to answer the 9th Circuit’s question, the California Supreme Court indicated that it won’t even hear oral arguments on the issue until September at the earliest. AFER also has filed documents asking the California Supreme Court to speed up its process for answering the question.

If the Prop 8 supporters ultimately are found to have no standing to appeal Walker’s ruling, then the 9th Circuit won’t hear the case. That would most likely allow Walker’s ruling to take effect and same-sex couples to marry again in California.

The federal standing question, however, could be appealed to the U.S.

Supreme Court. So could a decision by the 9th Circuit to grant Olson and Boies’ request that it lift the stay on Walker’s injunction.

It has been 203 days since Prop 8 was found to violate the U.S.

Constitution — and yet not one same-sex couple has been allowed to marry in California in those 203 days because of actions by 9th Circuit judges.

“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 AFER Board President Chad Griffin. “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 9th Circuit to allow marriages to resume.”

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