Attorney General Says Lift The Stay On Decision Overturning Prop 8

Attorney General Says Lift The Stay On Decision Overturning Prop 8

Attorney General Says Lift The Stay On Decision Overturning Prop 8

In a very interesting development, California Attorney General Kamala Harris has submitted a brief to the 9th US Circuit Court of Appeals asking it to lift its stay on a US Circuit Court Judge's decision regarding Proposition 8.

Early last year, US Circuit Judge Vaughn Walker overturned Proposition 8. He said its ban on same sex marriage violates the US constitution. He ordered the state of California to immediately start issuing marriage licenses to same sex couples. However, the supporters of Prop 8 appealed to the 9th US Circuit of Appeals asking it to overturn Walker's decision, and urging it to put his decision on hold (to stay the decision) until all the appeals in the case had been completed. The Court of Appeals did issue a stay on the lower court's decision.

Several parties that support same sex marriage (San Francisco, among others) urged the court to remove the stay That was expected. But this brief from the Attorney General adds a whole new element to the case.

Gerry Brown, when he was Attorney General, refused to intervene in the case. The supporters of Proposition 8 thought he should have it since it is part of the state constitution. They have made some efforts in court asking the court to require California's Governor and Attorney General to support the proposition. So far, that has not happened. They have also introduced a bill (SB 5) in the California legislature to require the Attorney General to defend initiative statutes, such as Proposition 8.

In her brief, Attorney General Harris notes that the 9th US Circuit Court of Appeals has asked the California Supreme Court to advise it on one aspect of the case. And the California Supreme Court does not even plan to hold hearing on the issue until next September. Harris noted that President Obama, and the US Attorney General, think the US Defense of Marriage Act, which bans recognition of same sex marriage by the US government, is unconstitutional. That , says Harris, adds to the likelihood that Proposition 8, which bans same sex marriage in California, will eventually be overturned completely by the courts.

Harris also maintained that the stay on the lower court's decision is not needed because no tangible harm will be done to those who support Proposition 8 if the stay is lifted. Nor will any tangible harm be done to opposite sex married couples if the stay is lifted. On the other hand leaving the stay in place does harm same sex couples. It denies them their constitutional right to marry. Given all the above, she says, same sex couples should not be asked to wait while the courts likely come to that conclusion.

It will be interesting to see how the 9th US Court of Appeals responds to this brief.

You may see a copy of the Attorney General's brief, and the San Francisco Brief, by clicking on the link below and then scrolling down to and clicking on the links at the bottom of the web based version of this article.

Here is the link to get you started: http://www.calcomui.org/nwsflsh030111.html

Boyce Hinman

California Communities United Institute

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