While dozens of same-sex marriages were being performed in San Francisco on Saturday, the Proposition 8 legal team filed an emergency petition asking the U.S. Supreme Court to stop the unions.
The Proposition 8 sponsors claim the 9th U.S. Circuit Court of Appeals jumped the gun by allowing gay marriages to proceed before opponents had time to request the Supreme Court to reconsider its action Wednesday. The high court said it declined to rule on California's voter-approved gay marriage ban, opening the door to same-sex marriage in California.
Opponents have 25 days from the date of a Supreme Court ruling to ask the high court to reconsider. Until that period elapses, the 9th Circuit should not have allowed California to start performing same-sex weddings, according to the emergency petition.
The emergency petition, prepared overnight, was submitted to Supreme Court Justice Anthony Kennedy, who decides motions related to the 9th Circuit.
"People on both sides of this debate should at least agree that the courts must follow their own rules," said Andy Pugno, general counsel for the ProtectMarriage.com Coalition, proponents of Proposition 8. "This kind of lawlessness just further weakens the public's confidence in the legitimacy of our legal system. We hope the Supreme Court will step in to restore some order here."
It's highly unlikely the Supreme Court will reinstitute the block on California's gay marriages until the 25 days elapse, said Vikram Amar, an associate dean at the UC Davis law school.
"The Supreme Court very rarely grants a motion for reconsideration, it's a thousand-to-one shot," Amar said.
Kennedy could refer the emergency petition to the full court, "but after the term that just ended, some of them scatter," Amar said.
It's possible several justices "will be somewhat peeved they acted quickly and it's poor form not to wait 25 days," Amar said. "But they're not going to block what the 9th Circuit did, which was to lift the stay on San Francisco federal Judge Vaughn Walker's ruling ordering the state officials to issue marriage licenses while Prop. 8 was on appeal."
Proposition 8 the state initiative banning gay marriage passed in November 2008 by 52.3 percent. Walker ruled in 2010 that it was unconstitutional. In April 2011, after retiring, he announced he is gay.
If the Supreme Court reconsidered its ruling opening the door to California gay marriage, all the same-sex weddings performed since Friday would have to be invalidated, Amer said.
"The sponsors of Proposition 8 say by the 9th Circuit letting these marriages go forward now, it makes it harder for the Supreme Court to reconsider."
The Supreme Court did not rule on the constitutionality of same-sex marriage, but held that the defenders of Proposition 8 were not the appropriate representatives of the state of California, Amar said.
"The only people who could defend Prop. 8 were the governor and the attorney general, and they decided not to, so the case dissolved because there was nobody left to defend it," Amar said.
In a statement released Saturday, proponents of Proposition 8 said, "Suspiciously, the 9th Circuit's announcement late Friday ordering same-sex marriages came as a surprise, without any warning or notice to Proposition 8 proponents.
"However, the same-sex couple plaintiffs in the case, their media teams, San Francisco City Hall, L.A. Mayor Antonio Villaraigosa and the California attorney general all happened to be in a position to perform same-sex marriages just minutes after the 9th Circuit's 'unexpected' announcement."
The emergency petition was filed by Pugno and the Alliance Defending Freedom, a Scottsdale, Ariz.-based group. Their senior counsel, Austin R. Nimocks, noted the 9th Circuit itself had said the stay on same-sex marriages would remain in place "until final disposition by the Supreme Court."
"Our clients were not given the time they are due and were promised so they can make their next legal decision," Nimocks said. "The more than 7 million Californians that voted to enact Proposition 8 deserve nothing short of the full respect and due process our legal system allows."
San Francisco officials reported 81 same-sex couples wed Friday, hours after the 9th Circuit's brief order saying it dissolved a stay it imposed on gay marriages while a lawsuit challenging the state's voter-approved ban on such unions worked its way through the courts.
Call The Bee's Stephen Magagnini, (916) 321-1072. Follow him on Twitter @stevemagagnini.
Editor's note: This story was changed at 10:58 a.m. Sunday to correct the spelling of the last name of the associate dean at UC Davis law school, Vikram Amar.