Desperate Measures

Fighting to halt any marriages for same-sex couples in California pending an appeal in the landmark federal case, attorneys representing Proposition 8 supporters lashed out in a Monday letter to the court, claiming that arguments in favor of marriage equality are divorced from centuries of tradition and rife with "distortions, caricatures, straw men."

Charles J. Cooper, the lead attorney who defended Prop. 8 in federal court, wrote to the U.S. court of appeals for the ninth circuit that "Plaintiffs' ... constitutional challenge to Proposition 8 boils down to this: the institution of marriage has been deliberately defined as an opposite-sex union by virtually every society throughout history -- from the ancients to the American states -- for no good reason."

Cooper's arguments favoring a stay of U.S. district judge Vaughn Walker's decision pending appeal, however, were largely a rehash of those that Walker rejected for lack of evidence in his 136-page opinion released August 4. Among them: that the overriding purpose of marriage is to encourage "responsible procreation and childbearing," that California voters had the right to strip same-sex couples of the right to marry, that sexual orientation is not immutable, and that gays have substantial political power.

Though Gov. Arnold Schwarzenegger and Atty. Gen. Jerry Brown have both requested that marriage rights for gay couples resume in the state as soon as possible, Cooper wrote that "the State's interest are ultimately those of its People, and the actions of [Schwarzenegger and Brown] in this case only confirm the People's wisdom in authorizing [Prop. 8 supporters] to represent their interest when their elected officials refuse to do so."

Walker announced last week that he would extend a temporary stay of his decision until August 18, giving Prop. 8 proponents time to appeal. If the ninth circuit decides against placing a stay on Walker's ruling, same-sex couples will again be able to marry in the state beginning Wednesday at 5 p.m.

Attorneys representing the two gay couples who sued the state have argued that opponents of marriage equality lack standing to seek a stay of the decision, in part because they have neither shown they are likely to win the case on appeal nor demonstrated why a resumption of marriages specifically would cause them harm.

It's also yet unclear whether Prop. 8 supporters, who defended the ballot measure after state officials declined to do so, have standing to appeal the case itself, one that many expected would end up before the U.S. Supreme Court.

National Center for Lesbian Rights executive director Kate Kendell told The Advocate last week, "Judge Walker's order clearly sets out his view that the proponents of Prop. 8 do not have standing to appeal without a state defendant, so no doubt that issue will be a very interesting one to watch."

In lieu of a state defendant in the case, the board of supervisors for Imperial County, where 70% of voters supported Prop. 8 in 2008, have attempted to intervene in the case, though Walker has previously denied their attempts to do so.