SAN FRANCISCO – On Tuesday California's attorney general asked the Ninth Circuit U.S. Court of Appeals to dismiss its order prohibiting same-sex marriages in California until an appeal of Proposition 8 is resolved.

In a statement filed with the Ninth Circuit, Attorney General Kamala Harris asked the appeals court to lift its stay of Judge Vaughn Walker's ruling declaring Proposition 8 unconstitutional.

Proposition 8, a ballot measure passed by California voters in November 2008, prohibits same-sex couples from marrying in the state.

The appeal of Judge Walker's ruling is pending before the Ninth Circuit U.S. Court of Appeals.

“For 846 days, Proposition 8 has denied equality under the law to gay and lesbian couples,” Harris said. “Each and every one of those days, same-sex couples have been denied their right to convene loved ones and friends to celebrate marriages sanctioned and protected by California law. Each one of those days, loved ones have been lost, moments have been missed, and justice has been denied.”

The Ninth Circuit has also asked the California Supreme Court to rule whether the proponents of Proposition 8 have standing to defend the initiative in court.

Last year, Attorney General Edmund G. Brown Jr. opposed imposition of the stay, pending appeal.

Harris said it is unlikely that an appeal will succeed in overturning Judge Walker's ruling that Proposition 8 is unconstitutional.

The appeal's likelihood of success has been substantially diminished, Harris said, “both by the United States Attorney General's conclusion that classifications based on sexual orientation cannot survive constitutional scrutiny and by this Court's certification order to the California Supreme Court, which seriously questions the Court's jurisdiction to decide the merits of the case.”

In addition, Harris said, “there is no injury that the proponents of Proposition 8 will suffer if same-sex couples are permitted to enter into civil marriages in California.”

But as long as the stay on same-sex marriages remains in effect, Harris said, the due process and equal protection rights of same-sex couples will continue to be violated, perpetuating unconstitutional discrimination and making a stay of Judge Walker's ruling legally inappropriate.

“The president and the United States attorney general have determined that they will not continue to defend the Defense of Marriage Act (‘DOMA'),” Harris said, “because it enforces a classification that fails to meet the heightened standard of scrutiny that should apply for equal protection analysis under the Fifth Amendment.”

The California attorney general's long-standing position, Harris told the Ninth Circuit, is that Proposition 8 “violates the equal protection clause of the Fourteenth Amendment of the United States Constitution.”

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