July 15, 2013
By Scottie Thomaston
UPDATE 12:50ET:Proponents’ reply is here.
On Friday, the proponents of Prop 8, ProtectMarriage.com, 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