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AG asks federal court to restore same-sex marriage now

POSTED March 1, 2011 10:59 p.m.

On Tuesday, California Attorney General Kamala D. Harris 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.

"For 846 days, Proposition 8 has denied equality under the law to gay and lesbian couples," Attorney General 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."

In a statement filed with the Ninth Circuit, Harris asked the appeals court to lift its stay of Judge Vaughn Walker's ruling declaring Prop. 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.

In his ruling, Judge Walker found Prop. 8 to be unconstitutional both under the due process and equal protection clauses of the U.S. Constitution as it violates constitutional rights to equality. More than 52 percent of California voters approved Prop. 8 in the Nov. 4, 2008 election, changing the California Constitution to only recognize marriages between a man and a woman.

Harris said it is unlikely that an appeal will succeed in overturning Judge Walker's ruling that Prop.  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 sexual orientation classifications are unconstitutional because they cannot survive rational basis 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 Prop. 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 (DOMA)," Harris said, “because sexual orientation classifications warrant heightened scrutiny and, under that demanding standard, the law is unconstitutional."

The California Attorney General's long-standing position, Harris told the Ninth Circuit, is that Prop. 8 "violates the equal protection clause of the Fourteenth Amendment of the United States Constitution."

To contact Kristina Hacker, e-mail khacker@turlockjournal.com or call 634-9141 ext. 2004.

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