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 step in and stop the weddings.
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 Friday when it allowed gay marriage to resume by lifting a hold it had 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 Friday, San Francisco was the only jurisdiction to hold weekend hours so samesex 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 outapplications 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 could not have been better for California National Guard Capt. Michael Potoczniak, 38, and his domestic partner of 10 years, Todd Saunders, 47, of El Cerrito.
Potoczniak, who joined the Guard after the military’s ban on openly gay service members was repealed almost two years ago, is scheduled to fly out tonight for a month of basic training in Texas.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 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 Friday in San Francisco and Los Angeles.
Austin Nimocks, senior counsel for Alliance Defending Freedom, said Saturday that the Supreme Court’s consideration of the caseisn’t done because his clients still have 22 days to ask the justices to reconsider the 5-4 decision.
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 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 Circuitacted contrary to its own order without explanation.”
Many legal experts who had anticipated such a lastditch 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, said Vikram Amar, a constitutional-law professor at the University of California, Davis.
“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.”
Front Section, Pages 3 on 06/30/2013