Published March 08, 2011
SAN FRANCISCO -- Lawyers for sponsors of California's gay marriage ban said Monday the Obama administration's refusal to defend a federal law prohibiting government recognition of same-sex marriages has no bearing on the state law.
As a result, the attorneys said they are urging a federal appeals court to keep blocking same-sex unions while it considers the constitutionality of the ballot measure known as Proposition 8.
The lawyers said the rationale for keeping the voter-approved ban in effect is the same now as it was last summer, when the 9th U.S. Circuit Court of Appeals put a trial judge's order overturning Proposition 8 on hold.
In papers filed with the 9th Circuit panel handling the case, they argued that the administration's decision to keep enforcing the Defense of Marriage Act until it is struck down by the courts or repealed by Congress actually bolsters their contention that the state ban should remain in effect during the appeals process.
"Far from undermining the stay, the Obama administration's decision to maintain the status quo and not disrupt the operation of (the act), which has been duly enacted into law, confirms the soundness of this court's conclusion that Proposition 8 likewise should not be precipitately suspended prior to a final judicial interpretation that such action is constitutionally required," lawyers Andrew Pugno and Charles Cooper wrote.
Monday's filing comes in response to a move by lawyers for the two gay couples who sued to overturn Proposition 8 to persuade the appeals court to revisit the hold now that it is unlikely to render a decision in the case until next year.
California Attorney General Kamala Harris joined the couples Friday in asking the panel to lift the hold on the lower court's order. Citing Obama's change of position among other factors, she argued that gay marriage should be allowed to resume in California because the coalition of conservative and religious groups that sponsored Proposition 8 were unlikely to prevail in their appeal.
The coalition's lawyers derided that assessment, maintaining the rationale for keeping the voter-approved ban in effect is the same now as it was last summer, and calling the gay couple's request "little more than a thinly disguised effort to re-litigate the stay."
They also expressed doubt that the two unmarried couples who are named plaintiffs in the case would immediately benefit if the 9th Circuit cleared the way for same-sex marriages to resume in California because a change in their marital status could potentially moot the case.
"And regardless of whether plaintiffs are willing to take that risk, this court certainly should not afford them the option of potentially mooting the case in this manner and so evading appellate review," the lawyers wrote.
The 9th Circuit does not face a deadline for deciding the hold issue.
Its consideration of the broader constitutional case has been postponed until the California Supreme Court weighs in on whether state law gives ballot proposition sponsors the right to defend their measures in court, a process that could take until the end of the year.