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U.S. gay marriage opponents ask court to halt weddings

Couples rush to wed in San Francisco after Supreme Court ruling

Posted: Jun 29, 2013 6:38 PM ET

Last Updated: Jun 29, 2013 10:41 PM ET

Opponents of gay marriage filed a long-shot petition on Saturday with the U.S. Supreme Court asking the justices to immediately halt same-sex weddings taking place in California since Friday, when an appeals court lifted a five-year-old ban on gay matrimony.

Marriage ceremonies of gay and lesbian couples went ahead after a three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco removed its stay of a trial judge's order striking the gay marriage ban, known as Proposition 8, as unconstitutional.

'[Proposition 8 supporters] should hang it up and quit trying to stop people from getting married.'—Ted Boutrous, attorney for American Foundation for Equal Rights

The stay had been in force while supporters of Prop 8, a state constitutional amendment passed by the voters in 2008, appealed their case to the Supreme Court.

But the justices on Wednesday ruled Prop 8 supporters lacked legal standing to defend the ban against a court challenge brought by same-sex couples, a decision that left the trial judge's decision intact and paved the way for gay marriage in the state to resume.

The Supreme Court had said its ruling would not go into effect for at least 25 days, the amount of time the justices normally give the losing party, in this case, Prop 8 backers, to seek a rehearing of the matter.

But California Attorney General Kamala Harris publicly urged the appeals court to lift its stay sooner than that, and on Friday the 9th Circuit did so in a surprise move that prompted a flurry of hastily arranged same-sex weddings up and down the state.

Harris herself officiated the very first one, a ceremony in which two plaintiffs in the lawsuit brought against Prop 8, Kristin Perry and her fiancée, Sandy Stier, exchanged vows on a balcony overlooking the grand staircase at San Francisco City Hall.

Dozens more couples lined up on Saturday at City Hall as officials kept the doors open to accommodate gay and lesbian couples eager to tie the knot.

In their application asking the Supreme Court to overrule the 9th Circuit and reinstate the gay marriage ban, opponents argued the appeals court had jumped the gun in lifting its stay, a move they said would "circumvent the proper rules and procedures."

The Arizona-based group Alliance Defending Freedom argued that the 9th Circuit lacked authority to act when it did, and that it violated the terms of its own stay requiring that the ruling remain in place "until final disposition by the Supreme Court."

But the American Foundation for Equal Rights, which sponsored the federal court challenge to Prop 8, issued a statement insisting that the 9th Circuit acted under its own "broad discretion" to issue its stay in the first place.

"Now that the Supreme Court has decided that the injunction against Proposition 8 must stand, it was entirely appropriate for the 9th circuit to dissolve its stay of that injunction," the alliance said in a statement.

'Weak argument'

Foundation attorney Ted Boutrous told reporters on a conference call on Friday that the 9th Circuit's move was hardly unprecedented and that appeals courts have taken similar actions in "much more boring cases than this" without drawing much notice.

Prop 8 supporters, he said, "should hang it up and quit trying to stop people from getting married."

Margaret Russell, a constitutional law professor at Santa Clara University School of Law in California, told Reuters the petition by Prop 8 backers had little chance of success.

"The 25 days isn't a final date. It's a period of time, and the 9th Circuit has the right, actually, to act within the 25 days," Russell said. "They lost the case, so I think that's a weak petition and a weak argument."

She added: "There are procedures for emergency action, but this doesn't even come close to that."

Russell and another Santa Clara law professor, Pratheepan Gulasekaram, agreed that the high court was unlikely to look favorably on the application.

There was no immediate response to the petition from the court.

With the federal appeals court action on Friday, California became the 10th state, in addition to the District of Columbia, where gay marriage is legal. Lawmakers in three more states - Delaware, Rhode Island and Minnesota - earlier this year approved bills to legalize same-sex marriage.

The Delaware law is slated to take effect on Monday. The laws in Rhode Island and Minnesota go into force on Aug. 1.

About 18,000 gay couples were previously married during a five-month window in 2008 after the California Supreme Court briefly swept aside an earlier ban but before Prop 8 was passed in November of that year.

In August 2010, then-U.S. District Judge Vaughn Walker declared Prop 8 unconstitutional following a three-week trial that marked the first challenge in federal court to any state law barring same-sex matrimony. It was his injunction against further enforcement of Prop 8 that had remained stayed by the appeals court pending resolution of the case.

The renewed tolling of wedding bells for same-sex couples in California capped a historic week for gay rights in the United States. In addition to the Supreme Court letting stand Walker's decision, the justices also extended federal benefits to married gay couples in a decision that struck down the Defense of Marriage Act.

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