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Judge who overturned Prop. 8 receives written arguments on whether to put his ruling on hold

August 6, 2010 |  5:30 pm

Top state officials and supporters of same-sex marriage urged a federal judge Friday to permit gay nuptials to resume immediately while opponents countered that the marriages would be clouded by uncertainty.

U.S. District Chief Judge Vaughn R. Walker has said he would rule on whether to postpone enforcement of  his order overturning Proposition 8 after he reviewed Friday’s written arguments.

Gov. Arnold Schwarzenegger and Atty. Gen. Jerry Brown joined the challengers of Proposition 8 in urging Walker to reject a request to put his decision on hold pending appeals.

Schwarzenegger said the state was well-equipped to marry gays and pointed to the fact that an estimated 18,000 gay couples were wed in California before Proposition 8 passed.

"Government officials can resume issuing such licenses without administrative delay or difficulty,”  Schwarzenegger’s office said in written arguments to the court.

The governor called Walker’s repudiation of Proposition 8 "consistent with California’s long history of leading the way in recognizing the rights of gay and lesbian families to order their relationships and manage their day-to-day lives."

Brown also told Walker that possible administrative difficulties should not be used as an excuse for denying gays the right to wed. Brown said his office last year opposed a pretrial request to block Proposition 8 only because the legal and factual issues had not yet been explored.

"That has now occurred," Brown's office said. " And while there is still the potential for limited administrative burdens should future marriages of same-sex couples be later declared invalid, these potential burdens are outweighed" by the constitutional rights of gays and lesbians.

The trial Walker presided over “conclusively demonstrated that Proposition 8 is unconstitutional,” Brown’s office said.

On the other side, lawyers for Proposition 8’s sponsors said that gay marriages conducted in California before the U.S. Supreme Court has the last word would be tainted  by instability and confusion.

In weighing whether to put a ruling on hold, judges consider the likelihood that higher courts would uphold the decision on appeal and whether irreparable harm would be caused by a postponement. On Friday, both sides  insisted that they ultimately would prevail.

Walker, who heard 13 days of testimony in January, said in his ruling Wednesday that Proposition 8 violated federal constitutional guarantees of equal protection and due process. He ruled that moral disapproval was not enough to deny gays the fundamental right to marry.

-- Maura Dolan in San Francisco

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