Attorneys: Lift the Stay on Calif. Marriage

It's been 225 days since a federal district judge ruled that Proposition 8 "fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license."

But as Prop. 8 supporters pursue their appeal in the case, a stay on Judge Vaughn Walker's order to stop enforcing the ballot initiative continues.

On Thursday, the legal team led by Ted Olson and David Boies reiterated their argument in support of immediately lifting that stay. "Proposition 8--and the stay that allows it to remain in force--is causing great damage. It is not merely deferring wedding dates," Olson wrote in a reply brief to the U.S. court of appeals for the ninth circuit. "For those near the end of life, it is denying the right to marry outright. 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[.]"

It's unclear when a three-judge panel of the ninth circuit could decide whether to lift the stay or allow it to remain in place. In January, the panel in a certified question asked the California Supreme Court whether under state law proponents of a ballot initiative have the right to defend its constitutionality when state officials refuse to do so.

Even if Prop. 8 supporters are allowed standing to appeal, their arguments have been seriously undermined by attorney general Eric Holder's February announcement that laws discriminating against gays and lesbians warrant "heightened scrutiny" by the courts. "Proponents cannot seriously believe their assertions that the position of the chief law enforcement officers of the United States 'adds nothing of consequence' to this case," Olson wrote.

A PDF of the full brief can be found here on the American Foundation for Equal Rights website.