Same-Sex Marriages Should Be Allowed During an Appeal, Schwarzenegger Says

California’s ban on same-sex marriage should be lifted while opponents fight to uphold the prohibition on appeal, Governor Arnold Schwarzenegger and Attorney General Jerry Brown said in court filings.

Schwarzenegger, a Republican serving his last term, and Brown, a Democrat running for governor, said in filings yesterday in federal court in San Francisco that they oppose a request by supporters of a voter-approved ban on same-sex marriages to stay U.S. District Judge Vaughn Walker’s order that found the ban violates the U.S. Constitution.

“Proposition 8 is unconstitutional,” Brown said today in his filing. “The public interest weighs against its continued enforcement.”

Schwarzenegger said in his filing that waiting for the appeals court to review Walker’s ruling before letting it go into effect isn’t necessary to protect any governmental or public interest. California allowed 18,000 same-sex couples to marry before the 2008 ban without suffering any harm, the governor said.

Walker said in an Aug. 4 decision that the plaintiffs, the city of San Francisco and two couples, had demonstrated by “overwhelming evidence” that Proposition 8 violates constitutional equal protection rights. He prohibited California from enforcing the ban.

“Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians,” Walker wrote in the decision. “The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples.”

‘Irreparable Harm’

Proponents of the ban said in an Aug. 3 filing that, without a stay order, same-sex marriages could begin immediately after Walker’s ruling. They said a stay was required because of the likelihood they will win on appeal and because of the “the possibility of irreparable harm absent a stay.”

Charles Cooper, a lawyer representing the supporters of the ban, didn’t immediately return a call to his office after regular business hours yesterday.

San Francisco, which filed the case along with the same-sex couples, said in a separate filing yesterday that Proposition 8 proponents haven’t provided any arguments that would justify putting Walker’s order on hold.

“Having failed to marshal any reliable evidence in support of their various factual assertions, proponents simply repeat in their stay motion the various unsubstantiated, unfounded and illogical arguments this court first rejected at summary judgment, and then rejected again after a full blown trial,” the plaintiffs said.

The case is Perry v. Schwarzenegger, 3:09-cv-02292, U.S. District Court, Northern District of California (San Francisco).

To contact the reporter on this story: Edvard Pettersson in Los Angeles at epettersson@bloomberg.net.

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