In the immediate wake of yesterday’s Department of Justice announcement regarding the cessation of defense for Section 3 of the Defense of Marriage Act, Ted Olsen announced that the California lawyers working against Proposition 8 in the Perry v. Schwarzenegger case asked the U.S. Court of Appeals for the 9th Circuit to immediately allow same-sex marriage for California LGBT couples.
Olsen and his associates are fought on behalf of same-sex marriage rights in the Perry v. Schwarzenegger challenge to Proposition 8. In light of the Department of Justice’s refusal to further defend Section 3 of Proposition 8, Olsen now argues that the current stay of the trial court ruling against Prop. 8 in the Perry case can no longer be justified. If the 9th Circuit were to comply with this request and reverse the stay, same-sex marriage in the state of California could technically begin immediately.
In an excerpt from the filing in which Olsen and the Perry legal team outline their request, they offer the following argument:
“The conclusion of the United States that heightened scrutiny applies to classifications based on sexual orientation is unquestionably correct. Proposition 8 cannot survive the requirements of heightened scrutiny because its invidious discrimination against gay men and lesbians could not conceivably further an important government interest. Indeed, proponents have made no serious at- tempt to defend Proposition 8 under that exacting standard.”
The filing is likely to be the first of many as lawyers develop and pose new arguments made possible by the protection implicit in yesterday’s DOJ decision.
