Live Blog: Prop 8 Attorneys Ask Court to Lift Stay on Same-Sex Marriage

Proposition 8 plaintiffs. Photo: KQED

The American Foundation for Equal Rights held a telephone press conference today with Proposition 8 plaintiffs’ attorneys Theodore Olson and David Boies. The attorneys announced that they had filed a motionwith the 9th Circuit Court of Appeals to lift a stay on a lower court’s order declaring the ban on same-sex marriage unconstitutional.

If the Ninth Circuit lifts the stay, same-sex couples might then be allowed to marry while the case is being decided.

The attorneys also said they had asked the California Supreme Court — deciding the issue of whether Prop 8 backers have legal standing to defend the law — to hear oral arguments in the case earlier than the September date it scheduled.

Live blog of the telephone conference call below:

11:03 a.m. Call is now over.

10:56 a.m. Final question, from Time magazine. Did they have any sense when they filed this that environment would change so quickly around this issue?

Boies: This type of discrimination cannot withstand judicial scrutiny, and thought that when it was litigated, support for same-sex marriage ban would wither away.

Olsen: The more we speak about this, the more arguments are made on both sides, the more people are swinging to the side of believing that this is not tolerable. The more some members of the public change their minds, the more other members of the public will change.

10:51 a.m. Jeffrey Toobin of New Yorker asks a question. Can they speculate as to how long Calif S. Court will take, and then does it go back to 9th Circuit for another round of briefing. What are procedural steps?

Boies says steps are: Calif Supreme Court looks at issue of standing. If court says proponents do not have special standing under Calif law, under opinion that 9th Circuit has already written, that should end matter and appeal should be dismissed.

If court says they do have standing under state law, then issue is, is that sufficient to give them standing under fedeara law?

Olsen says that as shown by cases involving other forms of discrimination, it should be obvious that courts have to move quickly on this. Says he thinks courts should be sympathetic to request for expedited resolution.

10:49 a.m. Boies says no chance a constiutional amendment prohibiting same-sex marriage will pass. To try to gain political advantage by “attacking group of American citizens based on sexual orienation is just not going to work today.”

10:45 a.m. Will this prompt right-wing congressmembers to press for a constitutional amendment against same-sex marriage?

Chad Griffin of AFER says discrimination is non-partisan. This is increasingly a non-partisan issue. Discrimination attacks everyone, not just Democrats and not just Republicans. Cites Laura Bush as one of several Republicans to come out against same-sex marriage ban.

Since filing of case, he says, two national polls show support of same-sex marriage to be at 50% or over.

10:44 a.m. Any response from proponents of Prop 8? And will they agree to expediting of case? Olsen says won’t speculate on what they will do; haven’t heard from them yet. Thinks everyone involved will want resolution as quickly as possible. Calls his legal opponents “very skillful.”

10:42 a.m. Boies again makes case that unconstitutionality of Prop 8 has been established, and that stay should be lifted. One thing to have stay if decision would be relatively prompt. But now, it will take considerably longer to have resolved, so appropriate for 9th Circuit to consider that stay.

10:40 a.m. Is it unprecedented for US govt to decline to defend federal legislation. Olsen says no, cites previous cases. “Many laws on the books involving discrimination on basis of the sex of parties have not been defended by DOJ. It’s unusual, but it does happen from “time to time.”

“We strongly feel that fact that two successive guvs and attornies generals” have found Prop 8 unconstitutional, and that Justice Dept has decided DOMA is as well, that will be very persuasive to courts.

10:37 a.m. How long will it take 9th Circuit to decide on lifting its stay? And can that decision be appealed?

Yes it can be appealed say both lawyers. As to timeline, Obama decision today may expedite things.

10:34 a.m. Boies is talking about judicial standards of Strict Scrutiny vs. Rational Basis and which will apply in this case. Olsen says he’s confident that they will prevail even under the more lenient rational basis standard.

10:30 a.m. Question: Goal appears to have changed. Formerly said they wanted to take it all way to Supreme Court, now they seem to be saying that’s not necessarily true anymore.

Olsen: When we filed complaint, we thought it possible that case could go to Supreme Court, but our objective was just to strike down Prop 8. AFER’s Chad Griffin says its overarching goal is to end all marriage discrimination, but focus is now on Perry v. Schwarzenegger.

10:28 a.m. Question from Idaho about state bans. What will Obama administration’s decision mean for the states? Olsen: These bans are unconstitutional, serve no purpose, and inflict harm on gays and lesbians and their children. It is now “overwhelmingly clear” that these discriminations are unconstitutional.

10:26 a.m. How likely is 9th Circuit to lift stay? Olsen says won’t speculate. Says when they entered that stay, they thought case was on a faster track for resolution. But now that the case has gone to Calif Supreme Court for guidance, that’s an “overpowering” reason for 9th Circuit to lift its stay. Says there is no legal justification to continue the stay.

10:25 a.m. Boies is now speaking. Says first federal trial was exhaustive and court held it to be unconstitutional. Going on a year now that was declared, so it’s time to lift the stay. Court filings available on AFER site. Questions from media now.

10:23 a.m. Olsen: Right to marry has been taken away from vast number of decent Californians. How long must gay and lesbian Californians suffer daily deprivation of fundamental rights that Prop 8 inflicts. Further delay is intolerable. Asking court to lift interim stay of enforcement of Prop 8 so injustice and stigma will no longer be sanctioned.

10:22 a.m. Olsen says every day marriage discrimination inflicts countless injuries on American citizens. Badge of inferiority and a reminder that Calif regards some citizens as inferior to others.

10:20 a.m. Now Olsen is speaking about the federal Proposition 8 case. Says they’ve filed with 9th Circuit Court of Appeals to ask that the stay of the previous court order striking down Prop 8 be lifted.

10:18 a.m. Olsen says he and Boies are gratified by DOJ announcement earlier today that it won’t defend Defense of Marriage Act.

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Jon Brooks

Jon Brooks writes mostly on film for KQED Arts. He is also an online editor and writer for KQED's daily news blog, News Fix. Jon is a playwright whose work has been produced in San Francisco, New York, Italy, and around the U.S.

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