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Published by Kathleen Perrin
Attorney General's Opposition to Emergency Motion for a Stay Pending Appeal. Filed 8/13/2010
Attorney General's Opposition to Emergency Motion for a Stay Pending Appeal. Filed 8/13/2010

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Published by: Kathleen Perrin on Aug 14, 2010
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10/25/2012

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No. 10-16696IN THE UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT
KRISTIN M. PERRY, et al.,
Plaintiffs-Appellees,
v.ARNOLD SCHWARZENEGGER, et al.,
Defendants.On Appeal from the United States District Courtfor the Northern District of CaliforniaNo. 09-cv-2292 VRWHonorable Vaughn R. Walker, District Court Judge
ATTORNEY GENERAL’S OPPOSITION TOEMERGENCY MOTION FOR STAYPENDING APPEAL
E
DMUND
G.
 
B
ROWN
J
R
.Attorney General of CaliforniaJ
ONATHAN
K.
 
R
ENNER
 Senior Assistant Attorney GeneralG
ORDON
B
URNS
 Deputy Solicitor GeneralT
AMAR
P
ACHTER
 Deputy Attorney GeneralD
ANIEL
J.
 
P
OWELL
 Deputy Attorney GeneralState Bar No. 230304455 Golden Gate Avenue, Suite 11000San Francisco, CA 94102-7004Telephone: (415) 703-5830Fax: (415) 703-1234Email: Daniel.Powell@doj.ca.gov
 Attorneys for Attorney General Edmund G. Brown Jr.
 
Case: 10-16696 08/13/2010 Page: 1 of 6 ID: 7440208 DktEntry: 8
 
 1The Attorney General opposes Appellant-Intervenors’ Request for aStay Pending Appeal of the district court’s Order permanently enjoining theapplication or enforcement of Proposition 8. As the Attorney General hasconsistently stated and as was convincingly demonstrated after a full trial onthe merits, Proposition 8, which prohibits same-sex couples from marrying,violates the Fourteenth Amendment of the United States Constitution.Appellant-Intervenors thus cannot demonstrate a likelihood of success on themerits in their appeal. Moreover, as the district court has concluded thatProposition 8 is unconstitutional, the public interest weighs against itscontinued enforcement.Appellant-Intervenors’ argument that the Attorney General’sopposition to Plaintiffs’ initial request for a preliminary injunction supportstheir request for a stay pending appeal ignores the fact that there has nowbeen a trial on the merits that conclusively demonstrated that Proposition 8is unconstitutional. In opposing the request for a preliminary injunction, theAttorney General argued that “the parties, the [district court], and, indeed,the general public would benefit” from having the constitutionality of Proposition 8 “decided on the merits following full briefing and argument bythe parties.” That has now occurred. And while there is still the potential
Case: 10-16696 08/13/2010 Page: 2 of 6 ID: 7440208 DktEntry: 8
 
 2for limited administrative burdens should future marriages of same-sexcouples be later declared invalid, these potential burdens are outweighed bythe district court’s conclusion, based on the overwhelming evidence, thatProposition 8 is unconstitutional. Accordingly, the harm to Appelleesoutweighs any harm to the state defendants.There is now a final determination that Proposition 8 isunconstitutional. Each of the four factors this Court must consider indetermining whether a stay is warranted weigh against a stay.
See GoldenGate Rest. Ass’n v. San Francisco
, 512 F.3d 1112, 115 (9th Cir. 2008).Thus, Appellant-Intervenors have not shown that they are entitled to a stayeven if this Court were to conclude they have standing. To the extent thedecision of the Attorney General not to file an appeal has bearing on thisCourt’s decision of whether to grant a stay, however, the Attorney Generalwill not be appealing the district court’s Order permanently enjoining theenforcement of Proposition 8.For the foregoing reasons, the Attorney General respectfully requeststhat Appellant-Intervenors’ request for a stay pending appeal be denied.
Case: 10-16696 08/13/2010 Page: 3 of 6 ID: 7440208 DktEntry: 8

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