By Lisa Leff
SAN FRANCISCO — The state’s top attorney has dealt another setback for seekers of gay marriage bans with her request to allow the unions to resume immediately in California, the latest in a string of about-faces siding with same-sex couples.
State Attorney General Kamala Harris’ request Tuesday to an appeals court considering the constitutionality of California’s gay marriage ban comes a week after the Obama administration said it would no longer defend a federal law that prohibits the U.S. from recognizing gay unions.
Together, the two actions represent a blow to opponents of gay marriage, as well as to Proposition 8, the voter-approved initiative that banned the unions in California in 2008.
In a letter to the 9th U.S. Circuit Court of Appeals, Harris joined the lawyers for two same-sex couples and the city of San Francisco in seeking the resumption of gay marriages in California. The unions were put on hold while Proposition 8’s sponsors appeal a trial judge’s ruling striking down the ban.
Harris said those sponsors were unlikely to prevail in their appeal and that keeping the ban in effect was a fruitless violation of gay Californians’ civil rights.
“The public interest weighs heavily against the government sanctioning such discrimination by permitting it to continue,” she wrote.
Harris also said the case for allowing gay marriages was bolstered by the Obama administration’s announcement last week that it would no longer defend the federal Defense of Marriage Act.
While not directly relevant to Proposition 8, the administration’s new position “substantially diminished” the likelihood the measure’s sponsors will be successful in their effort to get the lower court ruling overturned, she said.
Andy Pugno, legal counsel for the coalition of religious and conservative groups that put Proposition 8 on the November 2008 ballot and campaigned for its passage, disputed the attorney general’s contention that the prospects for a successful appeal were any more dim now.
“It’s a highly politicized case, and this is just a reminder that we need the initiative process exactly because state officials sometimes refuse to do their job,” Pugno said. “The fact that President Obama has made a carefully calculated political decision in no way changes the law and the role of the court to decide Prop. 8’s validity.”
Harris, a Democrat who previously served as San Francisco’s district attorney and who was a strong supporter of Obama’s in 2008, succeeded Gov. Jerry Brown as attorney general in January. Brown had refused to defend Proposition 8 in his previous role, as did then-Gov. Arnold Schwarzenegger.
Last year, both men asked the 9th Circuit to let gay couples marry during the appeals process.
The push by Harris to quickly get same-sex marriage reinstated in California could further enflame conservative activists angered by the Obama administration’s new stance.
The president of the Family Research Council, a Washington-based advocacy group that champions marriage and family as the foundation of civilization, said Tuesday it suspected the government was colluding with lawyers in the Proposition 8 case.
The group’s president, Tony Perkins, pointed out that lawyers for the two California couples asked the 9th Circuit to lift its stay just a few hours after U.S. Attorney General Eric Holder announced the administration’s new position on the federal act.
Perkins asked the government to provide records of any contact the Justice Department might have had with the attorneys. “Even the appearance of collusion between the Department of Justice and litigants is highly damaging to the rule of law in America,” Perkins wrote.
The couples’ lawyers have said the timing was coincidental.
Chad Griffin, president of the American Foundation for Equal Rights, which is funding the challenge to Proposition 8, said Harris’ endorsement demonstrates that gay people are being hurt while the ban remains in effect.
“Life is not eternal — sometimes it is tragically short — and courts should not act as if it were otherwise,” Griffin said. “Allowing the U.S. District Court’s landmark decision to enter into effect will not harm anyone, but will alleviate the suffering of countless families and their children.”
Same-sex marriages were legal in California before Proposition 8 passed in November 2008. The initiative supported by 52 percent of voters amended the state Constitution to limit marriage to a man and a woman.
Supporters of gay marriage are growing impatient with the slow pace of court proceedings. The California Supreme Court reiterated Tuesday that it would take at least until the end of the year to consider a legal question asked by the federal court as it tries to resolve the appeal.
Because the governor and attorney general refused to defend the law on appeal, its sponsors have asked the 9th Circuit to allow them to do so.
But the federal court panel has said it needs the state court’s guidance on whether ballot proposition sponsors can defend their measures in court if state officials will not. The state court has said it plans to hear oral arguments on the issue in September.