Fighting Prop 8: Lawyers Ask Court To Lift Stay On Gay Marriage Ban

WASHINGTON -- In the wake of the Obama administration's decision Wednesday to cease its legal defense of a federal ban on gay marriage, gay-rights advocates are looking to lift the notorious state-level ban in California that remains in place during a protracted appeals process even after being declared unconstitutional.

The American Foundation for Equal Rights, a group founded to overturn Proposition 8, the 2008 California ballot initiative that prohibited gay marriage, filed a motion Wednesday asking the Ninth Circuit U.S. Court of Appeals to end its stay of the ban. A Ninth Circuit judge struck down Proposition 8 in August, but left it in effect pending appeal efforts. The Supreme Court of California agreed last week to consider the issue, but will not hear oral arguments until next fall.

The foundation argued the stay should be lifted given the long timetable for a final decision on the law, claiming the ban will deal damage to gay families in the meantime.

"You can't just say 'Wait six months and then you'll get your constitutional rights,'" Theodore Olson, co-lead counsel for the rights organization, said during a conference call with reporters Wednesday. "Continuing to separate them out as a different class is harmful every day."

Word of the filing came just hours after President Barack Obama announced that he considers the Defense of Marriage Act, a federal law that defines marriage as between a man and a woman, to be unconstitutional. The Justice Department will no longer defend the law in court.

The fight over Prop. 8 features some interesting parallels with Obama's move on DOMA. In August, key California officials, including former Gov. Arnold Schwarzenegger and current Gov. Jerry Brown, then the attorney general, decided not to defend the ban against further legal battles.

In their place, proponents of Prop. 8 have tried to appeal the ruling, but it remains unclear whether they have the legal authority to do so. The federal appeals court asked the state supreme court to first rule on whether the groups can appeal, possibly long delaying a final ruling.

Last week, the American Foundation for Equal Rights filed a request with the state supreme court to expedite its ruling, but the foundation has grown more impatient with the ongoing delays.

"It would be one thing to have a stay if the determination was going to come relatively shortly ... now it's going to take considerably longer to get this resolved, so we think it's appropriate to ask the Ninth Circuit Court" to end its order preventing gay marriage, said David Boies, AFER's other lead counsel.

Although it is unclear when the courts will respond to the requests, the lawyers said Obama's announcement on DOMA could help their case.

"I think the combination of what the California Supreme Court did by suggesting it might take up to a year to resolve the procedural questions and what the U.S. government did today might induce the Ninth Circuit Court to respond very quickly," Olson said.