California AG Asks Court to Let Gay Couples Marry

SAN FRANCISCO (CN) - California Attorney General Kamala Harris asked the 9th Circuit to allow same-sex couples to marry while it reviews an appeal over Proposition 8, which put a statewide ban on gay marriage into effect. Enforcing the stay on same-sex marriages would only continue to violate same-sex couples' constitutional rights, Harris said.

A federal judge declared the ballot initiative unconstitutional last summer, but the 9th Circuit has postponed decision on the case and has stayed all same-sex marriages until the California Supreme Court can determine whether conservative proponents of the law have standing to appeal.

"Events have demonstrated that if the stay ever was justified, it is no longer," Harris wrote in a March 1 memo that echoes one filed on Feb. 23 by the gay and lesbian couples challenging the law.

Harris told the 9th Circuit that even if Prop. 8 proponents have standing to appeal, their chance of winning "has been substantially diminished" by both by the recent announcement from U.S. Attorney General Eric Holder that he and President Barack Obama would stop defending the federal Defense of Marriage Act of 1996, which limits the definition of marriage to opposite-sex couples and bars the government from recognizing gay marriage.

"The president and I have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional," Holder wrote to Congress earlier this month. Section 3 defines "spouse" and "marriage" to exclude same-sex couples.

In her statement to the 9th Circuit, Harris wrote: "For 846 days Proposition 8 has denied equality under law to gay and lesbian couples. Each and every one of those days, same-sex couples have been denied their right to convene loved ones and friends to celebrate marriages sanctioned and protected by California law.

"Each one of those days, loved ones have been lost, moments have been missed, and justice has been denied. The preconditions for a stay are lacking on this record. The stay should be vacated."

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