Prop. 8 backers make emergency effort to block same-sex marriages

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SAN FRANCISCO -- Backers of Proposition 8 made another attempt Saturday to stop gay marriage in California even as ceremonies were occurring throughout the day here.

ProtectMarriage, the sponsors of Proposition 8, filed an emergency petition to the U.S. Supreme Court on Saturday to stop same-sex marriages from continuing in California.

The petition says the decision by the U.S. 9th Circuit Court of Appeals to permit weddings starting Friday afternoon was “premature.”


“When the 9th Circuit originally put in place its stay to prevent same-sex marriage pending Supreme Court action, it stated clearly that ‘the stay shall continue until final disposition by the Supreme Court,’ ” the group said in a written statement.

“Under Supreme Court procedural rules, ‘final disposition’ comes when the Supreme Court issues a ‘mandate’ to the 9th Circuit, at least 25 days after announcing its opinion in the case. The 25-day waiting period is provided to allow parties such as Prop. 8’s proponents to petition the Supreme Court for a rehearing of the case.”

There was debate from legal experts about whether the strategy can work.

UC Davis law professor Vikram Amar said the chance of the Supreme Court intervening to stop same-sex marriages was “pretty low.”

Amar said the U.S. Supreme Court would act to stop the marriages only if it was inclined to agree to reconsider the case. ProtectMarriage has 25 days from the ruling to ask for reconsideration. Amar estimated that the Supreme Court grants only one or two such motions per decade.

But Chapman University law professor John Eastman, who has publicly backed Proposition 8, was hopeful about the prospects. He said his research indicates the 9th Circuit violated a federal rule Friday when it lifted the hold on a district judge’s decision to stop enforcement of the marriage ban.

Backers of Proposition 8 expressed suspicion about how quickly the two same-sex couples who challenged the ballot measure in court were ready to marry after the 9th Circuit acted, even though no notice had been given that the hold on marriages would be lifted.


“Suspiciously, the9nth Circuit’s announcement late Friday ordering same-sex marriages came as a surprise, without any warning or notice to Proposition 8’s official proponents,” a statement by ProtectMarriage said.

“However, the same-sex couple plaintiffs in the case, their media teams, San Francisco City Hall, L.A. Mayor Antonio Villaraigosa and the California attorney general all happened to be in position to perform same-sex marriages just minutes after the 9th Circuit’s ‘unexpected’ announcement.”

Justice Anthony Kennedy, who wrote Wednesday’s decision that gutted the anti-gay marriage Defense of Marriage Act, usually decides such petitions from California.

“People on both sides of this debate should at least agree that the courts must follow their own rules,” said Andy Pugno, chief counsel for ProtectMarriage. “This kind of lawlessness just further weakens the public’s confidence in the legitimacy of our legal system. We hope the Supreme Court will step in and restore some order here.”

On Friday, the appeals court bypassed a normal waiting period in lifting a hold on a trial judge’s order that declared Proposition 8 unconstitutional.

“It couldn’t come a moment too soon,” Lt. Gov. Gavin Newsom, who sparked the legal effort for gay marriage in California when he was San Francisco mayor, said Friday.


“What extraordinary timing, right before [gay] pride weekend,” he said. “All that time, all the struggle, and the moment has arrived.”

Supporters of Proposition 8 were furious that the 9th Circuit acted before the normal waiting period was up.

“It is part and parcel of the utter lawlessness in which this whole case has been prosecuted,” Eastman, of Chapman University, said. “Normally, courts let the parties kind of pursue their legal remedies before they issue a mandate.”

He said the 25-day period for asking the Supreme Court to reconsider still applied, and a rehearing, though extremely unlikely, remained a technical possibility.

“Tonight it is chaos and lawlessness, and anyone who is concerned about the rule of law ought to be deeply troubled by what happened here,” Eastman said.



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