Legal experts disagree over petition to stop same-sex marriages

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San Francisco City Hall is lit up in rainbow colors the night before the city’s gay pride parade. (Wally Skalij / Los Angeles Times)

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Jessica Hand, center, celebrates with her wife Jenna Melili during a marriage ceremony at City Hall in San Francisco on Saturday. Hand bought the wedding dress for $50 at a thrift store. (Wally Skalij / Los Angeles Times)

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Jessica Hand, in the wedding dress, and her wife, Jenna Melili, enjoy a cruise in San Francisco Bay on Saturday after getting married earlier in the day. (Wally Skalij / Los Angeles Times)

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Army Sgt. Michael Potoczniak and Todd Saunders, left; and Cynthia Wides, in the veil, and Elizabeth Carey wait to get married at City Hall in San Francisco on Saturday (Wally Skalij / Los Angeles Times)

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Dave Martinez, in blue, hugs his new husband Kenny during a marriage ceremony at San Francisco’s City Hall on Saturday (Wally Skalij / Los Angeles Times)

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Army Sgt. Michael Potoczniak and Todd Saunders have a witness sign their marriage license at City Hall in San Francisco Saturday. (Wally Skalij / Los Angeles Times)

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Elizabeth Carey, left, and Cyntia Wides embrace as Army Sgt. Michael Potoczniak and his partner Todd Saunders wait patiently in line to get married at City Hall in San Francisco on Saturday. (Wally Skalij / Los Angeles Times)

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Cynthia Wides, left, and and Elizabeth Carey of Oakland walk out of City Hall a married couple Saturday in San Francisco. (Wally Skalij / Los Angeles Times)

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Army Sgt. Michael Potoczniak and his partner Todd Saunders exchange rings during a marriage ceremony at City Hall in San Francisco Saturday. (Wally Skalij / Los Angeles Times)

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Army Sgt. Michael Potoczniak kisses his partner Todd Saunders as they stand in line to get their marriage license at City Hall in San Francisco Saturday. (Wally Skalij / Los Angeles Times)

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Rachael Hadley left, and her new wife Kim celebrate with their children Sidney, left, and Phin at City Hall while getting married Saturday in San Francisco. (Wally Skalij / Los Angeles Times)

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A couple who have been together for 33 years sign documents to get married at City Hall in San Francisco Saturday (Wally Skalij / Los Angeles Times)

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Brandie Yelland, left, hugs friend Erika Lewis in support of her marriage outside City Hall in San Francisco Saturday. (Wally Skalij / Los Angeles Times)

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A couple show off their wedding rings after getting married at City Hall in San Francisco Saturday. (Wally Skalij / Los Angeles Times)

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A couple hug during a marriage ceremony at City Hall in San Francisco Saturday. (Wally Skalij / Los Angeles Times)

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Cal Joy, center, and Olga Yip join hands in marriage as their daughter, Sasha Yip, 6, observes in San Francisco City Hall on Saturday. “It’s almost indescribable how it feels for us to be able to do this when for so long we felt like it was an unreachable goal,” Joy said. (Susannah Kay / Los Angeles Times)

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Adrian Coleman, front, dances with Matt Ferrer on Saturday in the United Nations Plaza in downtown San Francisco, where gay rights supporters celebrated the resumption of same-sex weddings in California. (Susannah Kay / Los Angeles Times)

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Ashlee and Ky Meyer-Choi touch noses after getting married in San Francisco City Hall on Saturday. “We’ve overcome a lot of struggles to be together, so to see all the support and love is something we haven’t experienced,” Ky said. (Susannah Kay / Los Angeles Times)

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Barb and Heather Miller-Webb kiss on the steps outside City Hall after being married Saturday. (Susannah Kay / Los Angeles Times)

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George Lucas, left, and Tom Rothgiesser, both 79, who met in Johannesburg, South Africa, and have been dating for 50 years, got married in San Francisco on Saturday. (Susannah Kay / Los Angeles Times)

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Newlyweds Carey Myslewski, left, and Katy Yan walk out of City Hall on Saturday. (Wally Skalij / Los Angeles Times)

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Jeff Zarrillo, left, and Paul Katami are married by Mayor Antonio Villaraigosa at City Hall in downtown Los Angeles after the 9th Circuit Court lifted the stay on same-sex marriage in California. (Christina House / For the Times)

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Jeff Zarrillo, left, and Paul Katami speak to the media immediately after their wedding ceremony by Mayor Antonio Villaraigosa at City Hall in downtown Los Angeles. (Christina House / For the Times)

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Alan Tekerlek, left, and K.C. Bugg celebrate in the crowd as their friends Jeff Zarrillo and Paul Katami are married by Mayor Antonio Villaraigosa. (Christina House / For the Times)

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Supporters applaud as Sandy Stier, second from right, and Kris Perry prepare to get married at San Francisco City Hall by California Atty. Gen. Kamala Harris. Gov. Jerry Brown ordered all counties in the state to begin issuing licenses immediately after the 9th Circuit Court ruling. (Justin Sullivan / Getty Images)

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Sandy Stier, left, and Kris Perry kiss their son, Elliot Perry, after they were married at San Francisco City Hall. (Justin Sullivan / Getty Images)

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Joe Varnell, left, and Kevin Bourassa, who became Canadas first legally married gay couple in 2001, welcome the courts decision at a Toronto bar. (J.P. Moczulski / AP)

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Hundreds of gay rights supporters gathered in West Hollywood on Wednesday to celebrate the Supreme Court rulings on the Defense of Marriage Act and California’s Proposition 8. (Gina Ferazzi / Los Angeles Times)

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Carlos Jimenez, left, and Mike Dardenelle of the San Fernando Valley kiss during a gathering on San Vicente Boulevard celebrating the Supreme Court decision Wednesday affirming a lower court’s ruling that declared Proposition 8, which banned gay marriage in California, unconstitutional. Jimenez and Dardenelle, who met online, have been dating for 15 years and plan to get married as soon as possible. (Susannah Kay / Los Angeles Times)

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Rainbow flags and flags of equality are raised in West Hollywood. (Gina Ferazzi / Los Angeles Times)

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Vincent Cervantes, left, and his partner, Vince Pancucci, embrace during a rally in West Hollywood after the Supreme Court’s ruling against Proposition 8. (Wally Skalij / Los Angeles Times)

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Kirsty Hood, 24, left, kisses Nora Tavitian, 23, at the Equality California offices in West Hollywood as a crowd celebrated the U.S. Supreme Court’s long-awaited decision on Proposition 8, California’s ban on same-sex marriage, Wednesday morning. (Al Seib / Los Angeles Times)

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A crowd gathered at the Equality California offices in West Hollywood cheers the Supreme Court’s decision on Proposition 8. (Al Seib / Los Angeles Times)

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Brandon Benoit, center, hugs Martha Acevedo, left and Briana J. Castaneda during the celebration at the Equality California offices in West Hollywood. (Al Seib / Los Angeles Times)

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Partners Alicia Guajardo, left, and Isabella Restrepo of Sylmar join the celebration at the Equality California offices in West Hollywood. (Al Seib / Los Angeles Times)

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Gay marriage supporters prompt motorists to honk their horns as they pass Equality California offices in West Hollywood to join in the merriment after the Supreme Court handed down its ruling on Proposition 8. (Al Seib / Los Angeles Times)

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Gay marriage supporters celebrate outside the Equality California offices in West Hollywood after Wednesday’s ruling by the U.S. Supreme Court that the sponsors of California’s controversial Proposition 8 did not have the legal standing to appeal a 2010 ruling against the measure. (Al Seib / Los Angeles Times)

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From right, David Cooley, Brandon Brown, Colby Melvin, Cory Leech and Wildran Quesada celebrate the Supreme Court decision to strike down a key part of the federal Defense of Marriage Act. (Irfan Khan / Los Angeles Times)

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Brandon Brown, 28, left, and Colby Melvin, 25, hug as as they celebrate the Supreme Court decision to strike down a key part of the federal Defense of Marriage Act. (Irfan Khan / Los Angeles Times)

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Brandon Brown, 28, left, gets a piece of cake from Colby Melvin, 25, as they celebrate the Supreme Court decision to strike down a key part of the federal Defense of Marriage Act. (Irfan Khan / Los Angeles Times)

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Robin Tyler tears up as she looks at her partner Diane Olsen during a press conference at attorney Gloria Allred’s office in Los Angeles, where they discussed the U.S. Supreme Court’s decision on same-sex marriage cases. They were the first in California in 2004 to announce that they would file a lawsuit challenging the ban on same-sex marriage in California. (Barbara Davidson / Los Angeles Times)

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The plaintiffs’ team in Hollingsworth vs. Perry, the California Proposition 8 case, celebrate on the steps of the Supreme Court after Wednesday’s ruling was handed down. From left are Jeff Zarrillo, his partner, Paul Katami, attorney David Boies, Sandy Stier and her partner, Kris Perry. (J. Scott Applewhite / Associated Press)

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Elana Kessler, left, is embraced by friend Hannah Greenberg as she speaks by phone with her mother on the steps of the Supreme Court after the court issued its rulings in two same-sex marriage cases. (Win McNamee / Getty Images)

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Gay rights activists react outside the U.S. Supreme Court building in Washington after the ruling on California’s Proposition 8. (Mladen Antonov / AFP/Getty Images)

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Plaintiffs Kristen Perry and Sandy Stier, left, and Jeffrey Zarrillo and Paul Katami arrive at the Supreme Court Wednesday morning to hear the high court’s ruling on California’s Proposition 8, which forbids on same-sex marriage. (Jim Lo Scalzo / EPA)

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Members of the public wait in line to enter the Supreme Court to hear their rulings on two same-sex marriage cases. (Jim Lo Scalzo / EPA)

By Maura Dolan

June 29, 2013 3:13 PM PT

UC Davis law professor Vikram Amar said the chance of the Supreme Court intervening to stop same-sex marriages in California was “pretty low” after backers of Proposition 8 filed an emergency petition Saturday with the court calling for a halt to the marriages.

Amar said the U.S. Supreme Court would act to stop the marriages only if it was inclined to agree to reconsider the case. ProtectMarriage has 25 days from the ruling to ask for reconsideration. Amar estimated that the Supreme Court grants only one or two such motions per decade.

Although the 9th Circuit and other appeals courts normally wait to act until the period for a rehearing request has expired, the judges can remove a hold on an order as soon as they receive a certified copy of the Supreme Court decision, he said.

Chapman University law professor John Eastman, who has publicly backed Proposition 8, disagreed. He said his research indicates the 9th Circuit violated a federal rule Friday when it lifted the hold on a district judge’s decision to stop enforcement of the marriage ban.

Backers of Proposition 8 expressed suspicion about how quickly the two same-sex couples who challenged the ballot measure in court were ready to marry after the 9th Circuit acted, even though no notice had been given that the hold on marriages would be lifted.

“Suspiciously, the Ninth Circuit’s announcement late Friday ordering same-sex marriages came as a surprise, without any warning or notice to Proposition 8’s official proponents,” a statement by ProtectMarriage said.

“However, the same-sex couple plaintiffs in the case, their media teams, San Francisco City Hall, L.A. Mayor Antonio Villaraigosa and the California attorney general all happened to be in position to perform same-sex marriages just minutes after the Ninth Circuit’s ‘unexpected’ announcement.”

On Saturday, ProtectMarriage, the sponsors of Proposition 8, filed its emergency petition with the Supreme Court.

The petition says the U.S. 9th Circuit Court of Appeals’ decision to permit weddings to start 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.”

Supreme Court Justice Anthony M. Kennedy, who wrote Wednesday’s decision that gutted the anti-gay Defense of Marriage Act, usually decides such petitions from Californina.

“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.”

ALSO:

Sponsors of Prop. 8 file petition to stop same-sex marriages

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