California Attorney General Kamala Harris asked a federal appeals court in San Francisco Tuesday to allow gay and lesbian marriages in the state to resume while an appeal is pending in a constitutional case.
Harris told the 9th U.S. Circuit Court of Appeals that a stay currently blocking same-sex marriages “perpetuates unconstitutional discrimination.”
“The public interest weighs heavily against the government sanctioning such discrimination,” Harris asserted in a filing.
The circuit court is currently considering an appeal by backers of Proposition 8 of a ruling in which U.S. District Judge Vaughn Walker of San Francisco struck down the voter-approved ban on same-sex marriage.
In August, the circuit court ordered a stay of Walker’s ruling while the appeal is pending.
But last week, two same-sex couples who challenged Proposition 8 in a civil rights lawsuit filed a motion asking the appeals court to end the stay.
They argued that circumstances had changed because the appeal is taking longer than expected and because the Obama administration has announced it will no longer defend the Defense of Marriage Act, a U.S. law that bars federal government recognition of same-sex marriages.
Harris submitted her three-page statement to the appeals court today in support of the couples’ motion.
She cited the Obama administration’s new position, which she said diminishes the likelihood that the appeal will succeed.
Harris’ predecessor in office, Gov. Jerry Brown, had also opposed a stay in papers filed with the appeals court in August.
A coalition of civil rights groups, including the National Center for Lesbian Rights, the American Civil Liberties Union, Marriage Equality and Lambda Legal, filed a similar brief today asking the court to lift the stay.
The appeals court has no deadline for acting on the requests.
In another development Tuesday, the California Supreme Court turned down a bid by the two couples for a speedier schedule for consideration of a procedural question that is delaying the federal appeal.
The question, which was referred to the state high court by the federal appeals court, is whether the sponsors of Proposition 8 have the legal authority under state law to defend it in the appeal in light of the fact that Brown and Harris have declined to do so.
In a brief order issued today, the state court refused the couple’s request that it hold a hearing on the issue in May rather than as planned in September.
Julia Cheever, Bay City News
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