J. Scott Applewhite, Associated Press
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. The court lifted a hold it had placed on same-sex unions while a lawsuit challenging the ban made its way to and through the Supreme Court.
"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."
Alliance Defending Freedom Senior Counsel Austin Nimocks said the Supreme Court's consideration of the case is not done yet because his clients still have 22 days to ask the justices to reconsider the 5-4 decision announced Wednesday.
The justices said Proposition 8's backers didn't have legal authority to defend the ban after California's governor and attorney general declined to do so. 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," Nimocks 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 Friday that 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."
The petition was submitted to Justice Anthony Kennedy, who oversees motions in cases on appeal from the 9th Circuit. Kennedy also wrote the decision on the other gay marriage case the Supreme Court handed down on Wednesday striking down the federal law that prevented the federal government from awarding spousal benefits to married gay couples.
The Supreme Court's finding that Proposition 8's backers lacked standing to defend it left in place a trial court's 2010 ruling that the measure, which amended the California Constitution to limit marriage to a man and a woman, violated the civil rights of gay Californians.
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 the lower court's order directing state officials to stop enforcing the ban.
The two couples who sued to overturn Proposition 8 were wed in San Francisco and Los Angeles Friday. On Saturday, dozens of couples in jeans, shorts, white dresses and the occasional military uniform filled San Francisco City Hall, where 81 same-sex couples obtained marriage licenses on Friday, as clerks returned to issue more licenses.
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