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Gay marriage opponents ask court to intervene

  • Article by: LISA LEFF
  • Associated Press
  • June 29, 2013 - 7:30 PM

SAN FRANCISCO — Less than 24 hours after California started issuing marriage licenses to same sex couples, lawyers for the sponsors of the state's gay marriage ban filed an emergency motion Saturday asking the U.S. Supreme Court to stop the weddings being performed in San Francisco.

Attorneys with the Arizona-based Alliance Defending Freedom claim in the petition that the 9th U.S. Circuit Court of Appeals acted prematurely and unfairly on Friday when it allowed gay marriage to resume by lifting a hold that had been placed on same sex unions.

"The Ninth Circuit's June 28, 2013 Order purporting to dissolve the stay...is the latest in a long line of judicial irregularities that have unfairly thwarted Petitioners' defense of California's marriage amendment," the paperwork states. "Failing to correct the appellate court's actions threatens to undermine the public's confidence in its legal system."

The motion was filed as dozens of couples in jeans, shorts, white dresses and the occasional military uniform filled San Francisco City Hall on Saturday to obtain marriage licenses. On Friday, 81 same sex couples received marriage licenses.

Although a few clerk's offices around the state stayed open late on Friday, San Francisco, which is holding its annual gay pride celebration this weekend, was the only jurisdiction to hold weekend hours so that same sex couples could take advantage of their newly restored right, Clerk Karen Hong said.

A sign posted on the door of the office where a long line of couples waited to fill out applications listed the price for a license, a ceremony or both above the words "Equality=Priceless."

"We really wanted to make this happen," Hong said, adding that her whole staff and a group of volunteers came into work without having to be asked. "It's spontaneous, which is great in its own way."

The timing couldn't have been better for California National Guard Capt. Michael Potoczniak, 38, and his partner of 10 years, Todd Saunders, 47, of El Cerrito.

Potoczniak, who joined the Guard after the military's ban on openly gay service was repealed almost two years ago, was scheduled to fly out Sunday night for a month of basic training in Texas.

"I woke up this morning, shook him awake and said, 'Let's go,'" said Potoczniak, who chose to get married in his Army uniform. "It's something that people need to see because everyone is so used to uniforms at military weddings."

The U.S. Supreme Court ruled on Wednesday that Proposition 8's backers lacked standing to defend the 2008 law because California's governor and attorney general have declined to defend the ban.

Then on Friday, the 9th Circuit appeared to have removed the last obstacle to making same sex matrimony legal again in California when it removed its hold on a lower court's 2010 order directing state officials to stop enforcing the ban.

Within hours, same sex couples were seeking marriage licenses. The two couples who sued to overturn Proposition 8 were wed in San Francisco and Los Angeles Friday.

Alliance Defending Freedom Senior Counsel Austin Nimocks said on Saturday that the Supreme Court's consideration of the case isn't done because his clients still have 22 days to ask the justices to reconsider the 5-4 decision announced Wednesday.

Under Supreme Court rules, the losing side in a legal dispute has 25 days to request a rehearing. While such requests are almost never granted, the high court said that it wouldn't finalize its judgment in the case at least until after that waiting period elapsed.

The San Francisco-based appeals court had said when it imposed the stay that it would remain in place until the Supreme Court issued its final disposition, according to Nimocks.

"Everyone on all sides of the marriage debate should agree that the legal process must be followed," he said. "On Friday, the 9th Circuit acted contrary to its own order without explanation."

Many legal experts who had anticipated such a last-ditch effort by gay marriage opponents said it was unlikely to succeed because the 9th Circuit has independent authority over its own orders — in this case, its 2010 stay.

While the ban's backers can still ask the Supreme Court for a rehearing, the 25-day waiting period is not binding on lower federal courts, Vikram Amar, a constitutional law professor with the University of California, Davis law school, said.

"As a matter of practice, most lower federal courts wait to act," Amar said. "But there is nothing that limits them from acting sooner. It was within the 9th Circuit's power to do what it did."

Also waiting to wed Saturday were Scott Kehoe, 34, and his fiance, Aurelien Bricker, 24. After finding out on Facebook that the city was issuing same sex marriage licenses Friday, the San Francisco couple rushed out to Tiffany's to buy wedding rings.

"We were afraid of further legal challenges in the state," Kehoe said.

The city, home to both a federal trial court that struck down Proposition 8 as unconstitutional and the 9th Circuit, has been the epicenter of the state's gay marriage movement since then-Mayor Gavin Newsom ordered his administration in February 2004 to issue licenses to gay couples in defiance of state law.

A little more than four years later, the California Supreme Court, which is also based in San Francisco, struck down the state's one-man, one-woman marriage laws.

City Hall was the scene of many more marriages in the 4 1/2 months before a coalition of religious conservative groups successfully campaigned for the November 2008 passage of Proposition 8, which amended the state constitution to outlaw same sex marriages.

Standing amid the beaming couples on Saturday, John Lewis and Stuart Gaffney of the advocacy group Marriage Equality USA looked like proud fathers. The men have been together 26 years, got married in February 2004, had their union invalidated six months later and then became one of the 18,000 couples estimated to have tied the knot in California before Proposition 8 was enacted.

"I don't think getting a license means as much to anyone who hasn't worked so long for it and fought so hard for it," Gaffney said. "It's been a very long engagement."

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