Calif. Attorney General Asks Court to Lift Stay on Same Sex MarriagesKamala Harris

March 1, 2011

California's Attorney General has filed an amicus brief with the 9th U.S. Circuit Court of Appeals asking the court to allow gay marriages to resume while the court considers the constitutionality of the state's ban on same-sex unions.

The brief was filed Tuesday March 1, by Attorney General Kamala Harris in the case challenging the decision by District Court Judge Vaughn R. Walker invalidating Proposition 8.

 


The Appeals Court issued a stay of Judge Vaughn’s decision while the issue worked its way through the court system, and has since asked the California Supreme Court for guidance on who has standing to appeal the decision. Harris’s brief asks that the Court lift its stay and allow same-sex couples to resume marriage.

In her brief, Harris said that “the likelihood that the appeal will succeed on the merits has been substantially diminished both by the United States Attorney General’s conclusion that classifications based on sexual orientation cannot survive constitutional scrutiny and by this Court’s certification order to the California Supreme Court, which seriously questions the Court’s jurisdiction to decide the merits of the case.”

Harris went on to say that “Intervenor-Appellants have been utterly unable to demonstrate that injury will befall them in the absence of a stay because there is no injury that the proponents of Proposition 8 will suffer if same- sex couples are permitted to enter into civil marriages in California. Indeed, because the stay continues in effect a law that has been adjudged to violate the plaintiffs’ due process and equal protection rights and therefore perpetuates unconstitutional discrimination, it is plaintiffs who continue to suffer substantial injury.”

Harris also pointed out that President Obama and the U.S. Attorney General have determined that they will not continue to defend the Defense of Marriage Act (“DOMA”) and that former California Attorney General Brown opposed entry of the stay.

Harris listed four factors for the Court to consider : whether the stay applicant has made a strong showing of likelihood of success on the merits, whether the applicant will be irreparably injured absent a stay, whether issuance of stay will substantially injure other parties interested in the proceeding, and where the public interest lies.

Her conclusion presented in the brief was that all factors weigh in favor of vacating the stay.

She further states that because the stay continues in effect a law that has been adjudged to violate the plaintiffs’ due process and equal protection rights and therefore perpetuates unconstitutional discrimination, it is plaintiffs who continue to suffer substantial injury.

“For 846 days Proposition 8 has denied equality under law to gay and lesbian couples,” Harris said in the brief. “Each and every one of those days, same-sex couples have been denied their right to convene loved ones and friends to celebrate marriages sanctioned and protected by California law. Each one of those days, loved ones have been lost, moments have been missed, and justice has been denied. The preconditions for a stay are lacking on this record. The stay should be vacated.”


 

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