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Schwarzenegger, Brown urge resumption of gay marriages

In written arguments to the judge who overturned Proposition 8, the governor and attorney general say such weddings should be allowed during the appeals process.

August 07, 2010|By Maura Dolan, Los Angeles Times

Reporting from San Francisco — Gov. Arnold Schwarzenegger and Atty. Gen. Jerry Brown urged a federal judge Friday to permit gay nuptials to resume immediately.

Chief U.S. District Judge Vaughn R. Walker on Wednesday overturned Proposition 8's ban of gay marriage. He put his decision on hold until he decides whether same-sex marriages should be permitted pending appeals.

Walker said he would rule after he reviewed written arguments on that question due Friday.

Schwarzenegger said California was prepared to marry gay couples and pointed to the fact that an estimated 18,000 same-sex couples wed in 2008 before Proposition 8 passed.

"Government officials can resume issuing such licenses without administrative delay or difficulty," Schwarzenegger's office said in written arguments to the court.

Brown also told Walker that possible administrative difficulties should not be used as an excuse for denying gays the right to wed. Brown said his office last year opposed a pretrial request to block Proposition 8 only because the legal and factual issues had not yet been explored.

"That has now occurred," Brown's office said. "And while there is still the potential for limited administrative burdens should future marriages of same-sex couples be later declared invalid, these potential burdens are outweighed " by the constitutional rights of gays and lesbians.

The trial Walker presided over "conclusively demonstrated that Proposition 8 is unconstitutional," Brown's office said.

On the other side, lawyers for Proposition 8's sponsors have said gay marriages licensed in California at this stage would be tainted by instability and confusion. They told Walker they would go all the way to the U.S. Supreme Court to make sure his ruling is not enforced before higher courts can review it.

Lawyers for two gay couples challenging the 2008 ballot initiative countered that the Proposition 8 sponsors had no authority to argue whether gays would or would not be hurt by marrying while Walker's ruling is on appeal.

"Gay men and lesbians are more than capable of determining whether they, as individuals who now enjoy the freedom to marry, wish to do so immediately or wait until all appeals have run their course," the challengers told Walker.

The California Supreme Court upheld the validity of the same-sex marriages that occurred before Proposition 8 passed in 2008, but scholars said marriages based on Walker's ruling would not have the same legal protection if higher courts reinstated the ban.

The case will soon move from Walker's courtroom to the U.S. 9th Circuit Court of Appeals, which has a majority of Democratic appointees. The 9th Circuit's decision, which is likely to take many months if not years, is expected to be appealed to the more conservative U.S. Supreme Court, the final arbiter of matters of federal constitutional law.

In weighing whether to put a ruling on hold, judges consider the likelihood that higher courts will uphold the decision on appeal and whether irreparable harm would be caused by a postponement. Both sides have insisted they will ultimately prevail.

Walker, who heard 13 days of testimony in January, said in his ruling Wednesday that Proposition 8 violated federal constitutional guarantees of equal protection and due process. He ruled that moral disapproval was not enough to deny gays what courts view as a fundamental right to marry.

Walker, 66, is a Republican appointee who was chosen randomly to oversee the Proposition 8 trial. The gay jurist is generally regarded as a conservative with libertarian leanings.

maura.dolan@latimes.com

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