(CN) – Challengers to the ban on gay marriage in California asked the 9th Circuit on Wednesday to lift a stay the court imposed while considering an appeal of the landmark ruling that found Proposition 8 unconstitutional. Also Wednesday, the Obama administration told Congress that it would stop upholding the Defense of Marriage Act after deeming the law unconstitutional.
Noting that the California Supreme Court agreed to intervene in the appeal over gay marriage last week, the motion to vacate the stay alleges that the state’s high court is unlikely to reach a resolution in the next 12 months. After the state Supreme Court weighs in, the case would then presumably return to the 9th Circuit for further deliberations.
The stay imposed by the 9th Circuit, which blocks gay and lesbian couples from obtaining marriage licenses in California, was not meant to last as long as the new schedule has dictated, according to the motion authored by Theodore Olson of Gibson, Dunn & Crutcher.
California’s Supreme Court took up the case to answer whether the proponents of Proposition 8 have standing to bring their appeal. Last month the 9th Circuit said it was unsure how to proceed with the appeal before it since former Gov. Arnold Schwarzenegger and former state Attorney General Jerry Brown, recently sworn in as California’s 39th governor, would not defend Proposition 8 or appeal a federal judge’s ruling that found the voter initiative was unconstitutional.
In its brief, unanimous order on the matter, the Supreme Court set a shortened briefing schedule and said it hoped to hear oral arguments by September.
“These new developments – this court’s certification order, the California Supreme Court’s response to it, and the attorney general’s announcement that the government will no longer defend DOMA – are materially changed circumstances that warrant vacatur of this court’s decision to grant a stay pending appeal,” the 23-page motion states.
On Wednesday, Attorney General Eric Holder wrote a letter to Congress stating that President Barack Obama has found that the Defense of Marriage Act, or DOMA, violates the right to equal protection afforded under the Fifth Amendment. Passed in 1996, DOMA prohibits the federal government from recognizing same-sex marriages.
Holder said in the letter that the administration has defended DOMA in the past but will not do so as the act is challenged in two jurisdictions that lack the same precedent standards of previous legal challenges.
“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, referring to a provision that sets federal definitions of “spouse” and “marriage” to exclude same-sex couples.
Gay marriage supporters say these developments indicate that the conservative group that sponsored Proposition 8 is not likely to succeed in its appeal and win a reversal of the decision that found the voter initiative unconstitutional.
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