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Prop. 8 Foes File to Lift Stay on Same-Sex Marriages

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With Pres. Obama casting a spotlight on gay marriage rights, California's advocates seek quicker legal action in courts

On the day President Barack Obama announced that his justice department would no longer defend the Defense of Marriage Act, a federal law that defines marriage as a union of a man and woman only, opponents of California’s Proposition 8 announced the latest salvo in their long-running fight to overturn that state ban on same-sex marriage.

In a teleconference with reporters this morning, attorneys Ted Olson and David Boies said they had just filed a motion with the 9th Circuit Court of Appeals in San Francisco to lift the stay on same-sex marriages, which was temporarily imposed when Prop. 8 was ruled unconstitutional last August.

Judge Vaughn Walker granted the stay to Prop. 8 supporters after his ruling on Prop. 8 in order to give them a chance to appeal his decision.

But the appeal process has dragged on through several twists and turns, and the continued prohibition on gay marriage—despite Walker’s ruling—now represents a daily hardship for California’s gay and lesbian residents, Olson said.

“The right to marry is not an abstract principle,” Olson said. “The California Supreme Court declared earlier that the denial of that right stigmatizes our gay and lesbian brothers and sisters. It is a constant reminder, a daily reminder that California regards some of its citizens as less equal than others.”

Olson and Boies couldn't predict how quickly the federal court would act on their motion, but they did anticipate that Prop. 8 supporters would act to block same-sex marriages from commencing.

Olson and Boies represent the American Foundation for Equal Rights, which filed the original suit against Prop. 8 in 2009. The group Protect Marriage, which is defending Prop. 8 in the court proceedings, is appealing Walker’s ruling to the 9th Circuit Appeals Court. But before that court will consider their appeal, the California Supreme Court must determine whether Protect Marriage and the named defendants in the Prop. 8 case have legal standing to actually file an appeal.

Calls to Protect Marriage and its chief counsel, Charles Cooper, for comment, were not returned.

The state Supreme Court has set oral arguments on the question for next September, with a decision handed down up to four months after that.

To move up that timeframe, Olson and Boies also filed an application to the court asking that it reschedule hearings for March and April and hold oral arguments in May.

“We had a trial, an exhaustive trial,” said Boies. “We are now at two-and-a-half years since Prop. 8 passed. We are going on almost a year since it was held unconstitutional, and we simply believe it is time to allow gay and lesbian Californians the same rights.”

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