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Attorneys file final brief asking appeals court to lift stay on Prop 8 ruling

Saturday, March 19, 2011
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Theodore Olson (left) and David Boies

SAN FRANCISCO — The American Foundation for Equal Rights (AFER) and its legal team — led by Theodore B. Olson and David Boies — filed a reply brief on Thursday, supporting a motion in the Ninth Circuit asking that the Court immediately lift an order preventing gay and lesbian couples from marrying in California.

That order, issued in August 2010, stayed the injunction issued by the U.S. District Court that barred further enforcement of Proposition 8, California’s 2008 voter-approved ban on same-sex marriage.

From the motion, via AFER:

“This Court should lift the stay of the Order of the district court enjoining enforcement of Proposition 8, and allow loving and committed gay and lesbian couples in California to marry while the challenge to the judgment by Proponents proceeds to its conclusion. The mandatory requirements of a stay are plainly not met, and the circumstances that existed at the time the stay was first imposed have now changed materially against any arguable justification for a stay.”

“If the stay were lifted here, Proponents would suffer nothing but the psychic harm they alleged in living in a society in which loving couples of the same sex may be married, joining the thousands who married before Proposition 8 and who remain married today.”

“If, as the Attorney General [of the United States] has determined, heightened scrutiny is the appropriate standard of review, Proponents have no likelihood of success on the merits. They do not because they cannot seriously defend Proposition 8’s state-sponsored discrimination under that standard.”

“Proposition 8 — and the stay that allows it to remain in force — is causing great damage. … But beyond the damage done to loving couples’ wishes to marry, Proposition 8 carries an unmistakable message — transmitted and enforced by the State and tolerated by this Court — that gay men and lesbians are members of a class of persons unworthy of the fundamental right of marriage and the ‘protection of equal laws.’”

Full brief here (PDF).

This is the final brief regarding this motion before the Ninth Circuit issues a ruling. If the stay is lifted, it will be the first time that gay and lesbian Californians will be able to legally marry since Prop 8 was passed in November 2008.

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