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Brown: Keep Prop. 8 in force until final resolution of federal challenge

June 12, 2009 |  1:03 pm

Jerrybrown California Atty. Gen. Jerry Brown asked a federal court Thursday not to block Proposition 8, arguing that a resumption of same-sex marriages in the state before the federal challenge was resolved would put those unions in “legal limbo.”

In written arguments filed late Thursday, Brown said permitting gays to marry before appeals in the case are completed “would not serve the public interest because it would create significant uncertainty for many persons [involved in] a relationship in which certainty is of the utmost importance.”

Brown’s decision to oppose an order blocking Prop. 8, which his office contended violated the state constitution, reflects widespread concern among supporters of same-sex marriage that the federal challenge may ultimately fail.

In fact, many gay rights activists openly condemned the federal suit as fraught with risk. They had urged supporters and gay couples not to sue in federal court out of fear that a loss before the U.S. Supreme Court could set back the cause for decades.

Shortly before the California Supreme Court upheld Prop. 8 last month, former U.S. Solicitor General Theodore Olson and prominent lawyer David Boies challenged the anti-gay marriage initiative in federal court in San Francisco. The state high court’s ruling -- based on state law, not the federal constitution -- also upheld the validity of an estimated 18,000 same-sex marriages that occurred before the November vote.

The new suit, filed against the state on behalf of two gay couples, contends Prop. 8 violates the due process and equal protection clauses of the U.S. Constitution’s 14th Amendment.

The state has not yet publicly said whether it would embrace those arguments, but Brown’s opposition to the measure at the state level suggests he might agree with the federal challenge.

The question posed to state officials was whether to put the ballot measure on hold immediately before the constitutional challenges are decided.

U.S. District Judge Vaughn Walker has scheduled a hearing early next month on whether to issue an injunction blocking Prop. 8.

Walker’s eventual decision in the case is likely to be appealed, possibly up to the U.S. Supreme Court, and a resolution of the challenge could take years.

“Staying operation of Proposition 8, without the certainty of a final judgment as to its constitutionality, would leave same-sex couples, as well as their families, friends, and the wider community, in legal limbo,” Brown argued.
-- Maura Dolan in San Francisco