Prop. 8 supporters try again, this time with state Supreme Court

Prop. 8 supporters try again, this time with state Supreme Court
Gov. Jerry Brown lacked the authority to order county clerks to issue same-sex marriage licenses, ProtectMarriage contends.
(Carolyne Corelis / Associated Press)

SAN FRANCISCO — The California Supreme Court once again is delving into the heated battle over gay marriage as it considers a request filed Friday by the backers of Proposition 8 to stop same-sex weddings.

ProtectMarriage, the sponsors of the 2008 ballot measure, asked the state high court to stop the weddings immediately on the grounds that Gov. Jerry Brown lacked the authority to order county clerks to issue same-sex marriage licenses.


In a 50-page petition, ProtectMarriage contended that Chief U.S. District Judge Vaughn R. Walker’s 2010 federal injunction against Proposition 8 did not apply statewide.

The court, in an order signed by Chief Justice Tani Cantil-Sakauye, asked Brown to respond Friday night to ProtectMarriage’s request for an immediate hold on the weddings while the justices consider the group’s arguments.


The order suggested the justices would rule quickly on the request for an immediate stop to the weddings but take several weeks to consider ProtectMarriage’s claims. The court gave the backers of the marriage ban until 9 a.m. Monday to address Brown’s arguments and set Aug. 1 as the deadline for further written arguments.

State Atty. Gen. Kamala D. Harris, representing Brown and other officials, told the court late Friday that stopping the marriages “could precipitate a conflict of constitutional dimension between this court and the federal court.”

The U.S. Constitution bars state courts from interfering with federal court orders, and halting the marriages now would create “uncertainty” about the validity of those already performed, Harris’ office argued.

ProtectMarriage’s petition to the court cited a state constitutional provision that prevents California officials from refusing to enforce a law without an appellate court ruling declaring it unconstitutional. There is no binding appellate decision that says the marriage ban was unconstitutional.


UC Irvine Law School Dean Erwin Chemerinsky, who favors same-sex marriage, said the California court would probably reject ProtectMarriage’s bid if the justices viewed it as an invitation to intervene in a federal matter.

“I don’t see how a state court can countermand or limit a federal court order,” Chemerinsky said. “When federal courts ordered desegregation, state courts could not limit the scope of their orders. I don’t see any difference.”

But Chapman University Law Professor John Eastman, who heads a group opposed to gay marriage, described the bid as “absolutely right on the law.”

The state Supreme Court may not want to act, but “to restore the rule of law they need to get involved,” Eastman said.


The Supreme Court ruled last month that ProtectMarriage lacked standing to appeal Walker’s injunction. That decision left Walker’s ruling in place but voided a federal appeals court decision against the measure.

By declaring that ProtectMarriage had no right to defend the measure under federal law, the Supreme Court appears to have made it impossible for the group to challenge the scope of Walker’s ruling in federal court. Initiative sponsors do have standing to defend measures in state court, however.

Unless the state’s highest court acts, “the end result will be to allow one federal district judge — empowered by state officials who openly advocated for and ceded to Proposition 8’s demise — to nullify a constitutional initiative approved by more than 7 million voters,” the challenge said.

San Francisco City Atty. Dennis Herrera said he was confident Friday’s bid would fail. “I think it is time that our opponents stop grasping at straws,” he said.

But Andy Pugno, general counsel for ProtectMarriage, said the challenge was “more than just a fight over marriage.”

“The authority of local government officials, and the future of the initiative process itself, is put at grave risk if state officials are allowed to nullify a proposition by executive order, backed by no binding legal precedent,” said Pugno, who filed the bid with the Alliance Defending Freedom, a religious liberties group.

The new challenge deals with a long-running controversy over the reach of Walker’s injunction against Proposition 8. Walker ruled in response to a federal suit that named state officials and two counties, Alameda and Los Angeles, as defendants. The two same-sex couples who sued live in those counties.

The injunction applied to several state officials, the clerks of Los Angeles and Alameda counties, and “all persons under the control or supervision of defendants.” ProtectMarriage argues that no law gives Brown or any other state official control over county clerks in the issuance of marriage licenses.

Brown, armed with a legal opinion from Harris, ordered clerks to issue same-sex marriage licenses June 28, after a federal appeals court removed a hold on Walker’s injunction. Both Brown and Harris opposed Proposition 8 and refused to defend it.

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