Schwarzenegger: Let same-sex weddings resume now

[August 07, 2010]  SAN FRANCISCO (AP) -- California Gov. Arnold Schwarzenegger, who twice vetoed legislation that would have legalized same-sex marriage, has surprised gay rights supporters by urging a federal judge to allow gay couples to resume marrying in the state without further delay.

Lawyers for Schwarzenegger, Attorney General Jerry Brown, two gay couples and the city of San Francisco all filed legal motions Friday asking Chief U.S. District Court Judge Vaughn Walker to implement his ruling striking California's voter-approved same-sex marriage ban as unconstitutional.

"The Administration believes the public interest is best served by permitting the court's judgment to go into effect, thereby restoring the right of same-sex couples to marry in California," the Republican governor's lawyers said on his behalf. "Doing so is consistent with California's long history of treating all people and their relationships with equal dignity and respect."

In his 136-page decision overturning Proposition 8 Wednesday, Walker said he was ordering the state to cease enforcing the 22-month-old ban. But he agreed to suspend the order until he could review the briefs submitted Friday.

The measure's sponsors have asked the judge to keep the ban in effect until their appeal of Walker's ruling invalidating Proposition 8 is decided by higher courts.

They argued in court papers filed earlier this week that resuming gay marriage now would cause legal chaos if the U.S. 9th Circuit Court of Appeals or U.S. Supreme Court eventually reverse Walker's ruling.

It was unclear when the judge would decide whether to grant a stay that would prevent marriage licenses from being issued to gay couples during the appeals process.

If he does clear the way for same-sex couples to wed, lawyers for sponsors of Proposition 8 said Friday they would seek an emergency order from the 9th Circuit to prevent that from happening.

The governor and attorney general almost always defend state laws when they are challenged, regardless of their personal views. But in this case, both Schwarzenegger and Brown refused to participate in fighting the lawsuit aimed at overturning the ban, even though they both were named as defendants.

That left the job of defending Proposition 8 to its backers, a coalition of religious and conservative groups known as Protect Marriage.

Although Schwarzenegger opposed the ban when it appeared on the November 2008 ballot and said after the election that it he hoped a court would overturn it, he officially took a neutral position in the lawsuit.

During the year it was in Walker's courtroom, the judge several times pointedly asked the governor's lawyer he was interested in knowing Schwarzenegger's position on the case. His Friday motion was his boldest pronouncement on the issue.

"His support today and at other critical junctures in our struggle against this discriminatory measure goes a long way in helping us realize our ultimate dream of achieving full equality for lesbian, gay, bisexual and transgender Californians," said Geoff Kors, executive director of Equality California, the state's largest gay rights group.

In 2005, Schwarzenegger vetoed a bill approved by the Legislature that would have legalized same-sex marriage. At the time, California had a law passed by voters in 2000 limiting marriage to a man and a woman. The governor said in his veto message he thought it was wrong for lawmakers to overturn a popular vote. He took the same position when the Legislature passed a second gay marriage bill two years later.

In May 2008, the California Supreme Court overturned the 2000 law and same-sex couples were allowed to wed. But Proposition 8 overrode the court's decision by amending the state Constitution.

Brown, the Democratic nominee who is seeking to replace Schwarzenegger when he is termed out of office this year, was more active than Schwarzenegger in supporting the lawsuit that led Walker to invalidate Proposition 8, submitting legal papers calling the ban unconstitutional.

He also said Friday that it's time for gays to begin marrying again.

"While there is still the potential for limited administrative burdens should future marriages of same-sex couples be later declared invalid, these potential burdens are outweighed by this court's conclusion, based on the overwhelming evidence, that Proposition 8 is unconstitutional," Brown said in his legal filing.

The legal team of David Boise and Ted Orson, who filed the lawsuit on behalf of two gay couples that led to Walker's ruling, also submitted a motion in conjunction with the city of San Francisco, another plaintiff.

They all argued that since the judge declared Proposition 8 to be illegal, gay couples should be able to marry now.

Boise and Orson said gay couples "will continue to suffer irreparable harm if Proposition 8's irrational deprivation of their constitutional rights is prolonged."

Santa Cruz County Clerk Gail Peelers, president of the California Association of Clerk and Elected Officials, said county agencies that issue marriage licenses will be ready to serve same-sex couples whenever they get the green light.

During the window in 2008 when same-sex marriage was legal in California, the state changed its marriage license applications to be gender-neutral so applicants only had to check boxes indicating "bride" or "groom" if they chose to.

At the same time, Peelers said local officials do not want to be in the position of being asked to issue licenses if Walker enforces his decision only to have an appeals court later impose a stay. It would be better for all involved to have the process be unambiguous, she said.

"We don't want to issue a couple who are in love and want to get married a $75 license and then turn around a minute or a week later and say that license is no longer valid," she said. "We don't want anyone to be in the position of being led down that path."

[Associated Press; By PAUL ELIAS]

Associated Press writer Lisa Elf contributed to this report.

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