Equality On Trial

Prop 8 proponents file California Supreme Court challenge to stop same-sex weddings

July 12, 2013

By Jacob Combs

Briefs Prop 8 Prop 8 trial

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.”

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