Two couples who are challenging California’s ban on same-sex marriage asked a federal appeals court in San Francisco on Wednesday to allow gay and lesbian weddings to take place in the state while their legal case is pending.
The couples asked the 9th U.S. Circuit Court of Appeals to lift a stay it issued in August of a lower court decision overturning Proposition 8, the state’s voter-approved ban on gay marriage.
The appeals court ordered the stay to be in effect while the sponsors of Proposition 8 and their committee, Protect Marriage, seek to appeal U.S. District Judge Vaughn Walker’s ruling that the voter initiative violates the U.S. Constitution.
But the two couples argued in a brief filed Wednesday that a stay “can no longer be justified” because of two recent developments.
The first development, the brief said, is that the appeal to the 9th Circuit has now been sent on a procedural detour to the California Supreme Court that could take at least seven months.
At the request of the federal appeals court, the state high court is considering whether the Proposition 8 proponents have the legal authority, or standing, to appeal in light of the fact that Gov. Jerry Brown and Attorney General Kamala Harris have declined to do so.
The second reason to lift the stay, according to the brief, is Wednesday’s announcement by U.S. Attorney General Eric Holder that the U.S. Justice Department will no longer defend the federal Defense of Marriage Act in court.
The U.S. law requires that for federal government purposes, marriage is defined as being between a man and a woman.
Theodore Olson, a lawyer for the couples, said in a telephone news conference, “I think there are overpowering reasons. We hope the stay will be lifted promptly.”
Co-counsel David Boies said, “It is time to allow gay and lesbian citizens in California the same rights everyone else has.”
The 9th Circuit has no deadline for acting on the request to lift the stay. A spokesman for the Proposition 8 sponsors was not immediately available for comment.
Olson and Boies also announced that they have asked the California Supreme Court to expedite its part of the case and hear arguments on the standing issue in May instead of September as currently planned.