Ten AGs ask California court to stay gay marriage ruling

By Chris Rizo | May 30, 2008

Mark Shurtleff

SAN FRANCISCO (Legal Newsline)-In a rare move, attorneys general from 10 states are urging the California Supreme Court to stay its ruling that would legalize same-sex marriage in the state.

In a friend-of-the-court brief filed Thursday with the California Supreme Court, the attorneys general say they need additional time to determine if their state would recognize gay marriages performed in the Golden State.

"Certainly if the new California definition of marriage continues past November, the resulting litigation in our courts of the recognition issue will have the virtue of being both necessary and unavoidable under the principles of 'our federalism,' principles to which we are all committed," Utah Attorney General Mark Shurtleff wrote on behalf of Utah and nine other AGs.

In addition to Utah, Alaska, Colorado, Florida, Idaho, Michigan, Nebraska, New Hampshire, South Carolina and South Dakota are asking the court to stay its ruling.

California Supreme Court expert Stephen Barnett told Legal Newsline that it's "not unusual" that other states would weigh in on what, by all accounts, could be a far reaching decision.

"This case will clearly will have an effect on other states, so it would be appropriate that they would file amicus briefs," said Bartlett, professor emeritus from University of California Berkeley's Boalt School of Law.

It is unlikely the Supreme Court will stay its decision, he added.

"After considering this case for a few years, California is not about to withhold its decision to give other states time to think about it," Barnett said.

The California justices ruled this month that California's ban on same-sex marriage violates the "fundamental constitutional right to form a family relationship," noting that "the designation of marriage to a union 'between a man and a woman' is unconstitutional."

The attorneys general are asking that the high court stay its May 15 ruling until after the November election so voters in California can decide on a ballot measure that would place into the state constitution a ban on gay marriage.

If the measure qualifies for the ballot and is approved, it will supersede the ruling.

The state's high court has until the close of business June 16 to decide whether to stay its May 15 decision.

For his part, California Attorney General Jerry Brown is urging the justices not to grant the stay. On Thursday, the Democrat's office filed papers urging the court to finalize its 4-3 ruling without delay.

"The Court has declared the law governing the right of same-sex couples to marry, and the Attorney General undertakes to give effect to that declaration with no less vigor than he previously sought to give effect to the statutes in dispute," the 33-page brief said.

"It is time for these proceedings to end," Brown's filing added.

From Legal Newsline: Reach reporter Chris Rizo by e-mail at chrisrizo@legalnewsline.com.

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