California attorney general urges court to lift gay marriage stay

California attorney general says Prop 8 supporters unlikely to win their appeal to keep ban on same-sex unions

By Lisa Leff
Published March 1, 2011 10:13PM (EST)
California Attorney General Kamala Harris     (Richard T. Bui)
California Attorney General Kamala Harris (Richard T. Bui)

California's attorney general asked a federal appeals court on Tuesday to allow gay marriages to resume while the court considers the constitutionality of the state's ban on same-sex unions.

The request came after the California Supreme Court said it needed the rest of the year to consider a legal question the appeals court said it needs answered before it can resolve the case.

In her letter to the 9th U.S. Circuit Court of Appeals, state Attorney General Kamala Harris said the sponsors of the voter-approved ban, known as Proposition 8, were unlikely to prevail in their appeal to reinstate the ban that was struck down by a trial judge.

Keeping Proposition 8 in effect therefore violates the civil rights of gay Californians, Harris said.

"The public interest weighs heavily against the government sanctioning such discrimination by permitting it to continue," she wrote.

Harris also said the case for allowing gay marriage 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.

Lawyers for the two gay couples who sued to overturn Proposition 8 made the same request to the 9th Circuit panel last week. The court imposed a stay on allowing gay marriage during the appeals process.

Harris, who previously served as San Francisco's district attorney, 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.

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.

Lisa Leff


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California Gay Marriage Proposition 8