Wednesday's presidential order to the Justice Department to stop defending the Defense of Marriage Act, the 15-year-old law which bars the federal government from recognizing same-sex unions, represents not only a major change in policy for the White House, but also a new wrinkle in the unfolding drama over the legality of California's Proposition 8.
A motion filed by Theodore B. Olson and David Boies, lawyers for the American Foundation for Equal Rights, asked the 9th Circuit Court of Appeals to lift the ban on gay marriage in California caused by Prop. 8 immediately, citing President Obama's decision as proof that preventing same-sex couples from marriage rights causes irreparable harm.
While the California Supreme Court overturned Prop. 8, which amended the California Constitution to bar same-sex marriage and passed in 2008 by ballot initiative, the appeal process has continued to drag on, with oral arguments for the appeal set for the fall. LGBT equality supporters say this is too long to wait.
Olsen told reporters, "I think the combination of what the California Supreme Court did by suggesting it might take up to a year to resolve the procedural questions and what the U.S. government did today might induce the Ninth Circuit Court to respond very quickly."
Prop. 8, which passed with 52% of the vote, remains a divisive issue in California. Supporters of it have introduced a bill into the state legislature that would force California Attorney General Kumala Harris to defend the bill in federal court. Previously, then Attorney General Jerry Brown, refused to defend it based on the Schwarzenegger administration's belief Prop. 8 is unconstitutional.
Wednesday's DOMA decision by the Obama Department of Justice followed similar reasonings. In a statement, Attorney General Eric Holder said:
"The Department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense. At the same time, the Department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because - as here - the Department does not consider every such argument to be a 'reasonable' one. "
Reaction to Obama's decision by Southern California LGBT residents was enthusiastic, but mixed. Openly gay East Hollywood Neighborhood Council Vice President Eric Moore reacted to the news, saying "The White House's statement is a step in the right direction. However, as long as there are large financial interests behind opposition (like the Mormon Church supported Yes on 8 campaign, or Target's support of anti-gay candidates), and politicians more concerned with being re-elected than doing what is right for a somewhat protected minority, there are big hurdles in the way of LGBTQ Californian's getting equal rights."
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