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 Friday when it allowed gay marriage to resume by lifting a hold that had been 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.
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Although a few clerk’s offices around the state stayed open late Friday, San Francisco, which is holding its gay-pride celebration this weekend, was the only jurisdiction to hold weekend hours, Clerk Karen Hong said.
A sign posted on the door of the office where a long line of couples waited to fill out applications 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 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 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 in San Francisco and Los Angeles Friday.
Alliance Defending Freedom Senior Counsel Austin Nimocks said Saturday that the Supreme Court’s consideration of the case isn’t done because his clients still have 22 days to ask the justices to reconsider the 5-4 decision announced Wednesday.
Under Supreme Court rules, the losing side in a legal dispute has 25 days to request a rehearing. While such requests are rarely 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 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 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 wait is not binding on lower federal courts, said Vikram Amar, a constitutional-law professor with the University of California, Davis, law school. “As a matter of practice, most lower federal courts wait to act,” Amar said. “But there is nothing that limits them from acting sooner.”
San Francisco, home to both a federal trial court that struck down Proposition 8 as unconstitutional and the 9th Circuit, has been the epicenter of the state’s gay-marriage movement since then-Mayor Gavin Newsom ordered his administration in February 2004 to issue licenses to gay couples in defiance of state law.