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Filed under: Prop 8 trial

Response filed in Prop 8 proponents’ latest attempt to halt same-sex marriages in California

By Scottie Thomaston

Plaintiffs in the Prop 8 case. Attribution: LGBTQ Nation
Plaintiffs in the Prop 8 case. Attribution: LGBTQ Nation

UPDATE 12:50ET:Proponents’ reply is here.

On Friday, the proponents of Prop 8,, asked the California state supreme court to order the enforcement of Prop 8. The proponents argue that Judge Walker’s injunction against enforcement of Prop 8 doesn’t apply broadly across the entire state and that California law requires enforcement of Prop 8 until an appeals court issues a ruling on the question of Prop 8’s constitutionality.

The state supreme court asked for an ‘informal opposition’ from the state in response to the question of issuing a stay on same-sex marriages in the state as a preliminary matter, and the state filed that late on Friday.

The state’s filing points out that Judge Walker’s order is a federal court order, so the state argues that any further action against that order should be filed in federal, not state, court. The state argues that the issue is foreclosed by the Supremacy Clause of the federal Constitution, that the federal Constitution is the supreme law of the land, and that Judge Walker’s order was expressly issued against state officials so it can’t be challenged in that state’s court system.

Moreover, the state argues, the proponents don’t meet the burden for a stay on issuing marriage licenses to same-sex couples in California. They write that there’s no irreparable harm proponents will face, and that, since the challenge should have been filed in federal court, there is not a likelihood of success on the merits.

The California supreme court has also ordered the proponents to reply to the state by today at 9AM PST; then, opposition to the remaining questions (other than the question of the stay) is due Monday, July 22, and proponents can file a reply to that opposition on August 1.

The state supreme court could act at any time.

h/t Kathleen Perrin for these filings

Prop 8: State's Informal Opposition by EqualityCaseFiles

Proponents’ reply:

Prop 8: Proponents' Reply by EqualityCaseFiles

3 Comments July 15, 2013

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

By Jacob CombsCalifornia state seal

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 Comments July 12, 2013

Equality news round-up: Justice Kagan talks marriage equality, and more

By Scottie Thomaston

Justice Kagan, with President Obama and Chief Justice Roberts. Attribution:
Justice Kagan, with President Obama and Chief Justice Roberts. Attribution:

– 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 Comments July 8, 2013

Developing: After confusion, Imperial County issuing marriage licenses to same-sex couples

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 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

Supreme Court rejects Prop 8 defenders’ request for emergency stay

By Jacob CombsProp 8 emergency stay request

In the midst of this weekend’s celebrations in California and across the country, the Prop 8 case experienced one (probably) final hiccup.

It began on Friday afternoon, when we reported that the Ninth Circuit panel that invalidated Prop 8 in February of last year unexpectedly lifted its stay on Judge Vaughn Walker’s lower court ruling striking down the law and instructing California officials not to enforce it.

As we discussed last Wednesday, the proponents of Prop 8, as the losing party before the Supreme Court, have a 25-day window during which they may petition the high court for rehearing of its decision in the Prop 8 case.  (As SCOTUSblog’s Tom Goldstein noted, that 25-day window lasts until July 21, a Sunday, meaning that Monday, July 22 is the actual final date to file such a petition.)  Until that time, although such petitions are almost never granted, the judgment is technically not final.

Despite the fact that the Supreme Court’s decision in the Prop 8 case is not yet technically in effect, the Ninth Circuit has wide discretion over decisions regarding its own stay orders.  Not surprisingly, when the stay was lifted on Friday, same-sex couples in California flocked to city halls to get married–including the two plaintiff couples in the Prop 8 challenge: Kris and Sandy and Jeff and Paul.

On Saturday, Andrew Pugno and lawyers with the Nevada-based Alliance Defending Freedom, which had represented the proponents of Prop 8, submitted a brief with the Supreme Court seeking an emergency order vacating the Ninth Circuit’s decision to lift the stay.  The Ninth Circuit, the lawyers argued, lacked jurisdiction to issue its order lifting the stay, violated the stay order in lifting it and effectively deprived Prop 8’s defenders to the opportunity to petition for a Supreme Court rehearing.

Less than 24 hours later, Supreme Court Justice Anthony Kennedy, the circuit justice for the Ninth Circuit, denied the request without comment.  As SCOTUSblog’s Lyle Denniston noted, there is essentially no way of knowing what legal rationale Justice Kennedy used in making his determination.  Denniston also wryly pointed out the implicit irony in Kennedy’s action, given that he was in the four-justice minority who voted to allow Prop 8’s proponents to defend the law in court.

The proponents’ failure to obtain an emergency stay from the Supreme Court  could likely be the last federal court proceeding in the case.  The proponents still have until July 22 to file a petition for rehearing, but it looks exceedingly unlikely that such a request would be approved.

Of course, the proponents could also attempt to challenge the scope of Judge Walker’s injunction, which some have argued was overly broad and should not have been effective statewide.  Most legal observers find that argument unpersuasive, and now that marriages have begun across California, it seems a stretch that anything could roll back that development.

Still, the proponents of Prop 8 have been tenacious in their defense of the law.  Of course, we’ll have coverage of any and all attempts  they make to postpone what at this point is essentially inevitable.

3 Comments July 1, 2013

BREAKING: Ninth Circuit lifts stay, allows marriage equality to resume in California

By Jacob Combs

Plaintiffs in the Prop 8 case. Attribution: LGBTQ Nation
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 Comments June 28, 2013

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