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California AG asks Ninth Circuit to lift same-sex marriage stay

California Attorney General Kamala Harris [official website] on Tuesday requested that the US Court of Appeals for the Ninth Circuit [official website] lift the stay order [press release] prohibiting gay couples from marrying while an appeal of the invalidation of Proposition 8 [text, PDF; JURIST news archive], California's same-sex marriage ban, is pending. Harris argued that the appeal is unlikely to succeed in light of jurisdictional concerns [JURIST report] and the recent US Department of Justice (DOJ) [official website] decision [JURIST report] to stop defending the constitutionality of portions of the Defense of Marriage Act (DOMA) [text; JURIST news archive] on the grounds that laws concerning sexual orientation should be subject to a higher standard of review. Harris also questioned the rationality of continuing to enforce the stay, noting that the measure's supporters would not be subjected to harm if the order was lifted, whereas same-sex couples seeking to marry may face violations of their constitutional rights so long as the stay remains effective. A three-judge panel for the Ninth Circuit issued the stay [JURIST report] in August.

After being asked [JURIST report] by the Ninth Circuit to weigh in, the Supreme Court of California [official website] announced [release, PDF; JURIST report] last month that it will decide whether supporters of Proposition 8 have standing to defend the measure when state officials have refused to do so. When Judge Vaughn Walker of the US District Court for the Northern District of California [official website] struck down Proposition 8, then-governor Arnold Schwarzenegger and former attorney general and current Governor Jerry Brown [official website], who were originally defendants in the lawsuit, refused to continue defending the measure on appeal [JURIST report], leaving defendant-intervenors Project Marriage [advocacy website] and other groups to defend the law. In January, the Ninth Circuit also upheld [opinion, PDF] a lower court decision refusing to allow officials from Imperial County, California [JURIST report] to intervene, and Judge Stephen Reinhardt issued a memorandum opinion [text, PDF] on his decision not to recuse himself [JURIST report]. The Ninth Circuit heard oral arguments [video; JURIST report] in the case, Perry v. Schwarzenegger [case materials] in December. The hearing was divided into two one-hour sessions, with the first section focusing on the issue of standing and the second on Proposition 8's constitutionality.

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