The sponsors of the anti-gay marriage Proposition 8 in California have filed an emergency petition with the Supreme Court seeking to halt same sex marriages in the state.
The petition says the decision by the U.S. 9th Circuit Court of Appeals to permit weddings starting Friday afternoon was "premature."
"When the Ninth Circuit originally put in place its stay to prevent same-sex marriage pending Supreme Court action, it stated clearly that 'the stay shall continue until final disposition by the Supreme Court,' " the group said in a written statement.
"Under Supreme Court procedural rules, 'final disposition' comes when the Supreme Court issues a 'mandate' to the Ninth Circuit, at least 25 days after announcing its opinion in the case. The 25-day waiting period is provided to allow parties such as Prop. 8's proponents to petition the Supreme Court for a re-hearing of the case."
Justice Anthony Kennedy, who wrote Wednesday's decision that gutted the anti-gay marriage Defense of Marriage Act, usually decides such petitions from California.
"People on both sides of this debate should at least agree that the courts must follow their own rules," said Andy Pugno, chief counsel for ProtectMarriage. "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 and restore some order here."
On Friday, the appeals court bypassed a normal waiting period in lifting a hold on a trial judge's order that declared Proposition 8 unconstitutional.
"It couldn't come a moment too soon," Lt. Gov. Gavin Newsom, who sparked the legal effort for gay marriage in California when he was San Francisco mayor, said on Friday.
"What extraordinary timing, right before [gay] pride weekend," he said. "All that time, all the struggle, and the moment has arrived."
Supporters of Proposition 8 were furious that the 9th Circuit acted before the normal waiting period. ProtectMarriage, the sponsors of the ballot measure, has 25 days from the ruling to ask for reconsideration.
"It is part and parcel of the utter lawlessness in which this whole case has been prosecuted," Chapman University constitutional law professor John Eastman said. "Normally, courts let the parties kind of pursue their legal remedies before they issue a mandate."
He said the 25-day period for asking the Supreme Court to reconsider still applied, and a rehearing, though extremely unlikely, remained a technical possibility.
The Prop 8 sponsors appear to have a very good case for delay. But the Supreme Courts doesn't much like emergency petitions like this because they come to the high court naked of lower court opinion.
But this is a technical matter, and not necessarily an issue that needs adjudication. And since it appears that the circuit court overstepped its authority, Kennedy may grant the delay.