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Attorney General asks federal court to immediately restore right of same-sex couples to marry

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From page A5 | March 1, 2011 |

SAN FRANCISCO – Attorney General Kamala D. Harris on Tuesday asked the Ninth Circuit U.S. Court of Appeals to dismiss its order prohibiting same-sex marriages in California until an appeal of Proposition 8 is resolved.

In a statement filed with the Ninth Circuit, Harris asked the appeals court to lift its stay of Judge Vaughn Walker’s ruling declaring Proposition 8 — which prohibits same-sex couples from marrying in California — unconstitutional.

The appeal of Judge Walker’s ruling is pending before the Ninth Circuit U.S. Court of Appeals. The Ninth Circuit has also asked the California Supreme Court to rule whether the proponents of Proposition 8 have standing to defend the initiative in court.

Last year then-Attorney General Edmund G. Brown Jr. opposed imposition of the stay, pending appeal.

Attorney General Harris said it is unlikely that an appeal will succeed in overturning Judge Walker’s ruling that Proposition 8 is unconstitutional. The appeal’s likelihood of success has been substantially diminished, Harris said, “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.”

In addition, Harris said, “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.” But as long as the stay on same-sex marriages remains in effect, Harris said, the due process and equal protection rights of same-sex couples will continue to be violated, perpetuating unconstitutional discrimination and making a stay of Judge Walker’s ruling legally inappropriate.

“The president and the United States attorney general have determined that they will not continue to defend the Defense of Marriage Act,” Harris said, “because it enforces a classification that fails to meet the heightened standard of scrutiny that should apply for equal protection analysis under the Fifth Amendment.”

The California attorney general’s long-standing position, Harris told the Ninth Circuit, is that Proposition 8 “violates the equal protection clause of the 14th Amendment of the United States Constitution.”

“For 846 days, Proposition 8 has denied equality under the law to gay and lesbian couples,” Harris said. “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.”

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