Filed under: Prop 8
By Jacob Combs
The saga continues, at least for now: ProtectMarriage, the group behind Proposition 8, the 2008 constitutional amendment that banned marriage equality in California, is asking the California Supreme Court to order county clerks to stop issuing marriage licenses to same-sex couples. The Los Angeles Times reports:
Opponents of same-sex marriage asked the California Supreme Court on Friday to order county clerks to deny marriage licenses to same-sex couples, arguing that Gov. Jerry Brown lacked the authority to end enforcement of Proposition 8.
ProtectMarriage, the group that sponsored the 2008 ballot measure banning gay marriage, urged the state high court to act under a California constitutional provision that prohibits officials from refusing to enforce a law unless an appellate court has first determined the law is unconstitutional. There is no binding appellate ruling that says Proposition 8 is unconstitutional.
Legal experts predicted the California court would reject the challenge. Lawyers for the gay couples who fought Proposition 8 in federal court said they anticipated such an action and were prepared to respond to it. They said a state court may not interfere with a federal court’s decision.
According to the Times, the California Supreme Court customarily meets on Wednesdays to consider such requests, but could take action at any time to either deny the petition or seek written arguments.
ProtectMarriage also argues that the 2010 decision by U.S. District Court Judge Vaughn striking down Proposition 8 as unconstitutional–which became the final federal court say on the matter after the U.S. Supreme Court ruled the proponents of Prop 8 did not have standing to appeal the ruling–should not apply statewide.
The named defendants in that suit were the California governor, attorney general and the clerks of Alameda and Los Angeles counties. In its filing, ProtectMarriage posits that California’s other clerks were not affected by the ruling, which Walker ordered to apply to “all persons under the control or supervision of defendants.” ProtectMarriage argues that no state law gives the governor or attorney general supervisory powers over county clerks.
In interviews with the Los Angeles Times, former state Supreme Court Justice Carlos R. Moreno and Santa Clara University law professor Gerald Uelmen both expressed an opinion that the high court would reject ProtectMarriage’s challenge. In that case, the group could file a further challenge in a county superior court.
Andrew Pugno, a lawyer for the proponents of Prop 8, issued a statement today after the filing was submitted, according to the Sacramento Bee:
The man-woman definition of marriage, as passed by the voters, is still a valid part of our state constitution. Yet county clerks statewide are lawlessly defying that law by issuing gender-neutral marriage licenses. We are asking California’s Supreme Court to restore the rule of law and the public’s confidence in the integrity of the initiative process.
UPDATE 3:05PM ET: SCOTUSBlog has the filing as well as a statement from attorney Ted Olson, who litigated the case in opposition to Prop 8:
“This latest filing is utterly baseless. The Supreme Court of the United States has rejected the appeal from Judge Walker’s declaration that Proposition 8 violates the federal constitution and the injunction prohibiting state officials from enforcing it. The California Supreme Court itself has confirmed that, when they administer marriages, county clerks are “ state officers performing state functions and are under the exclusive jurisdiction of the state registrar of vital statistics.” Any county that defies the federal court’s injunction is at risk not only of contempt of court but also a lawsuit under the federal civil rights laws for which it would be liable for damages and the plaintiffs’ attorneys’ fees. Proponents’ latest effort to stop loving couples from marrying in California is a desperate and frivolous act.”
3 CommentsJuly 12, 2013
By Scottie Thomaston
Justice Kagan, with President Obama and Chief Justice Roberts. Attribution: whitehouse.gov
– Maggie Gallagher, formerly of the National Organization for Marriage, suggested recently that Justice Kennedy issued a “fatwa” against people who oppose marriage equality.
– Former President George W. Bush made some vague comments recently about marriage equality, but refused to address the issue directly, saying he is out of politics.
– What’s next after DOMA’s downfall?
– A Colorado couple gets their green card post-DOMA.
– The LA Times looks at the anti-Prop 8 side’s strategy they had in place for a Supreme Court decision based on standing.
– In an interview with Jeffrey Rosen, Justice Elena Kagan briefly discussed the marriage equality cases the Court decided in June. She did decline to discuss the issue of state marriage bans, pointing out that the Prop 8 case was only decided on standing, so the Court has not yet spoken on the merits issue.
4 CommentsJuly 8, 2013
By Jacob Combs
Earlier today, an EqualityOnTrial community member posting under the handle ‘Whistleblower’ wrote in a comment on the website that he had contacted the county clerk’s office of Imperial County and was told the office would not be issuing marriage licenses to same-sex couples. He later posted that a representative of the office had confirmed the clerk in fact was issuing licenses, which EqualityOnTrial has confirmed with the Imperial County Clerk/Recorder’s office, the San Francisco City Attorney’s office and the office of California Attorney General Kamala Harris.
Update 1 (2:15 p.m. Pacific): According to an initial post on EqualityOnTrial.com by commenter Jeff_Calif, an employee of the clerk’s office at 10:25 Pacific time said that the office would not be issuing licenses. Christine Allen, of the national LGBT advocacy organization Marriage Equality USA, told EqualityOnTrial that she subsequently spoke with a woman at the clerk’s office and was told that the office had not received final word from its legal counsel as to whether or not the office should approve licenses for same-sex couples. Allen, who did not obtain the woman’s name or position, was told to call back later in the day. She alerted her organization’s legal director; Marriage Equality USA also contacted Fernando Lopez of the ACLU of Southern California, who investigated further.
At shortly after 1:00 p.m. Pacific time, Whistleblower posted that he had spoken with a woman named Virginia at the clerk’s office and was told the county was issuing licenses for same-sex couples. EqualityOnTrial spoke with the same woman, whose full name is Virginia Wong, and received the same information. EqualityOnTrial later confirmed this information with the San Francisco City Attorney’s office, who had received confirmation from Attorney General Harris’s office.
Update 2 (2:35 Pacific): Imperial Valley Press has also confirmed that the county clerk will be issuing licenses to same-sex couples. According to the Press, “[t]he office was given direction about an hour ago to move forward with issuing licenses.”
Imperial County has been involved in the Prop 8 case since the litigation began: the county’s Board of Supervisors and then-Deputy/Clerk/Deputy Commissioner of Civil Marriages Isabel Vargas filed a motion in 2009 seeking to intervene in the Perry suit in a San Francisco district court, arguing that the named defendants (the clerks of Los Angeles and Alameda counties) were not adequately defending the marriage equality ban. In his ruling invalidating Prop 8, Judge Vaughn Walker also turned down Imperial County’s request.
The county later appealed Judge Walker’s decision to the Ninth Circuit Court of Appeals, which dismissed Imperial’s action for lack of standing. Last February, the current county clerk, Chuck Storey, filed a brief seeking intervenor status with the Ninth Circuit Court of Appeals, which was considering Walker’s decision. His decision was quickly denied by the appellate court.
This is a developing story–check back for updates.
July 1, 2013
By Jacob Combs
Plaintiffs in the Prop 8 case. Attribution: LGBTQ Nation
Huge news: the Ninth Circuit Court of Appeals has just lifted the stay on Judge Vaughn Walker’s district court ruling striking down Proposition 8 as unconstitutional. More from the Los Angeles Times:
The U.S. 9th Circuit Court of Appeals on Friday cleared the way for gay marriages to resume in California.
The court lifted its stay on an injunction which ordered state officials to stop enforcing Proposition 8. With the court’s action, counties can now begin issuing same-sex marriage licenses.
A spokesman for the U.S. 9th Circuit Court of Appeals had originally said it would takes the court at least 25 days to act after a Supreme Court ruling. Immediately afterward, Gov. Jerry Brown ordered his public health agency to advise the state’s counties to “begin issuing marriage licenses to same-sex couples in California as soon as the 9th Circuit confirms the stay is lifted.”
The brief order, which you can find here, reads:
The stay in the above matter is dissolved effective immediately.
Marriages can resume in California right away. The Clerk of the Supreme Court had earlier issued an order saying their mandate would not issue for 25 days, but the Ninth Circuit was able to lift the stay of the district court’s mandate without waiting for Supreme Court action.
This is a developing story, and we will have more as events unfold.
h/t Kathleen Perrin for these filings
Ninth Circuit order:
Prop 8: 9th Circuit Stay Lifted by EqualityCaseFiles
5 CommentsJune 28, 2013
By Scottie Thomaston
The U.S. Supreme Court declined to review more LGBT rights cases yesterday.
Yesterday, after the Supreme Court issued its final decisions of the term, it held a conference to determine what the Court should do about the remaining petitions for review in cases related to marriage equality. Recall that although Windsor was the only DOMA case ultimately accepted for review, the Court was actually asked to hear several more challenges to the Act. And although the Prop 8 case was ultimately the vehicle chosen to discuss, possibly, marriage equality, the Court was faced with other cases.
Today’s order list by the Court resolves these DOMA cases, and addresses the petitions in the marriage and benefits cases in their early stages, without commenting on a final outcome so early in the process.
First, in the case marriage equality advocates are watching closely, after yesterday’s final decision in the Prop 8 case: the Court declined to review the petition in Nevada’s marriage equality case, filed by the proponents of the constitutional marriage ban in the state. That case, initially filed by Lambda Legal, is known as Sevcik v. Sandoval in the lower courts, and Coalition for the Protection of Marriage v. Beverly Sevcik, et al at the Supreme Court. So far, only the district court has issued a decision: the judge ruled against the same-sex couples who filed the lawsuit, using a very deferential standard of review. The plaintiffs appealed the case to the Ninth Circuit Court of Appeals, where they were awaiting briefing and arguments; then, the Coalition, the ballot initiative proponents, asked the Supreme Court to rule on the merits of a broad constitutional right to same-sex marriage. The Coalition asked the Court to rule against such a right and to do so even as the plaintiffs continued to argue that the case is much narrower. A request to review a petition before judgment is rarely granted, so it’s no surprise the Court would want to wait until there is full briefing and arguments at the Ninth Circuit.
The Sevcik case was placed on a parallel track with another marriage case, Jackson v. Abercrombie, out of Hawaii. They are both in the Ninth Circuit and both were appealed by same-sex couples who lost in the district court. The Jackson case is not at issue at the Supreme Court at this stage. Now that the petition was denied, both cases can continue. When the Ninth Circuit does hear arguments and issue a ruling, the losing party can ask the Court to review it, and that seems like a likely request in the future. It’s not clear based on yesterday’s decisions if the Court would take up another marriage case, but either way, they likely won’t see another marriage equality petition for a year.
Second, they looked at the other DOMA petitions. The Court simply denied review in the other challenges. The section of the statute at issue in all of these cases was declared unconstitutional yesterday, so it can’t be constitutional in any other situation. There are still some remaining issues, because in some DOMA challenges which have not yet reached the Court (or even an appeals court) other statutes are at stake. There are military and immigration statutes which use the same language as Section 3 of DOMA. However, yesterday’s opinion was written in a way that suggested the definitions violated both equal protection and federalism principles, so there is language which could be used in these other challenges. In denying review of the other DOMA cases, the lower courts will determine if there are any outstanding issues aside from the ones decided in Windsor yesterday. If not, the gay plaintiffs in these cases win judgment in their favor.
Another case the Court declined to review was Brewer v. Diaz. Arizona’s Governor Jan Brewer petitioned the Court to block a preliminary injunction that was preventing her from implementing a law to deny same-sex couples benefits in the state. It was in the early stages, and if they had taken it up and ruled in her favor, the state would have been able to block the benefits only while the case continued in the lower courts – there was not yet an ultimate judgment on whether the law in the state is permissible or not. Since they decided not to address the case in these early stages, same-sex couples in Arizona will receive benefits while the case works through the courts. The Court could still grant a petition if one is filed after the appeals court rules, but that won’t happen for awhile.
In short, some Ninth Circuit cases will continue, on marriage and benefits, but the only challenges left in the DOMA cases will be those in which Section 3 of DOMA and another statute were challenged, since the other statutes weren’t at issue in Windsor. And with Sevcik and Jackson at the Ninth Circuit, and DeBoer in Michigan continuing, more court action is coming soon.
June 27, 2013
By Scottie Thomaston, Jacob Combs, and Adam Bink
1:06ET: We will be opening the chat about 10 minutes before it starts, which is in about ten minutes from now. Until then, the chat feature will remain closed. Hope to see you all there soon!
Attorneys Shannon Minter and Chris Stoll from the Nation Center for Lesbian Rights (NCLR) join us here today for a live chat on the Supreme Court’s decisions in the challenges to Section 3 of the federal Defense of Marriage Act and California’s Prop 8. They have graciously agreed to be around to answer all questions you may have on what the Court said about marriage equality and federal recognition of same-sex couples. Readers can post your questions into the chat (you won’t need an account) and we will moderate the discussion, posting questions there for Shannon and Chris to answer.
Live Q&A on Prop 8, DOMA decisions with EqualityOnTrial and NCLR
EqualityOnTrial will have more in depth coverage later today on the marriage cases after the live discussion ends. Stay tuned!
June 26, 2013