Filed under: Prop 8
California Supreme Court declines to halt same-sex marriages in latest challenge by San Diego’s county clerk
By Scottie Thomaston
Last week, San Diego’s county clerk filed a petition with the California state supreme court to end the issuance of marriage licenses to same-sex couples in the state. (This is separate from the one filed the previous week by the proponents of Prop 8 to halt marriages.) As in the petition filed the week before, San Diego’s county clerk asked for an immediate temporary stay on the marriages, and for the state supreme court to ultimately decide whether they will allow counties to refuse to issue same-sex marriage licenses.
The state of California filed a response, opposing an immediate stay, largely for the same reasons as the other petition. The state supreme court has now denied the request for an immediate stay in a brief order. Marriages will continue across the state while the California supreme court works through the issues.
In the proponents’ new case, twenty clerk recorders have opposed the petition and filed a brief in support of marriage equality.
Thanks to Kathleen Perrin for these filings
Last Friday, Ernest Dronenburg, Jr., the San Diego Assessor/Recorder/County Clerk, filed a petition with the California Supreme Court seeking an order to halt marriages for same-sex couples in the state.
Marriage equality was returned to California on June 28, two days after the Supreme Court ruled the proponents of Proposition 8 did not have standing to defend the law in court, allowing a district court decision invalidating the law to go into effect. Nevertheless, the legal battles surrounding the law continue, as the Los Angeles Times reports:
Ernest J. Dronenburg Jr. argued that the court should halt weddings while it considers the argument that the federal court ruling should apply only to the two couples who sued over Proposition 8, as well as to the county clerks in Alameda and Los Angeles counties, where the couples live.
Dronenburg, 69, is an elected Republican whose office is in charge of issuing marriage licenses in San Diego County.
Dronenburg’s request comes on the heels of a petition filed with the state high court by ProtectMarriage, the group which sponsored Prop 8 during the 2008 election and worked to rescind marriage equality rights in the Golden State. In its filing, the ProtectMarriage argued that California Governor Jerry Brown lacked the constitutional authority to mandate county clerks to issue marriage licenses to same-sex couples–an argument that Dronenburg echoes in his petition.
In his filing, Dronenburg says that he is ”caught in the crossfire of a legal struggle over the definition of marriage” since he believes Prop 8 is still in effect but had been ordered by state officials to provide marriage licenses to same-sex couples.
Last week, the California Supreme Court denied the Prop 8 proponents’ request for an immediate stay prohibiting same-sex couples from obtaining marriage licenses while the new legal challenge makes its way through the state courts. Briefing on the larger issues of the case is scheduled to continue today and last through early August.
University of California, Irvine Professor Douglas NeJaime told the Los Angeles Times that Dronenburg’s filing essentially piggybacks on ProtectMarriage’s petition, although it differs in that it is being made by an government official who may be better equipped to demonstrate a constitutional injury than the proponents of the ballot measure. According to the Times, NeJaime predicts Dronenburg’s challenge will fail.
San Diego County’s majority Republican Board of Supervisors put distance between them and Dronenburg after the clerk’s court filing. ”The county clerk has acted independently on this matter,” board Supervisor Greg Cox told the Times. “No one else from the county was consulted or had any part of this court action, including the Board of Supervisors. The county’s position is and always has been that we, the county, will follow applicable law with regards to same-sex marriage.”
Dronenburg’s filing, via Scribd, is available below. (H/t to Kathleen and Equality Case Files)
The California Supreme Court has just denied Prop 8 proponents’ request for a stay on performing same-sex marriage in the state. The proponents asked the court on Friday to stay the marriages and to consider mandating enforcement of Prop 8 in all but two counties in the state, state officials responded, and proponents replied this morning.
The docket page says:
The request for an immediate stay or injunctive relief is denied.
Presumably, the court will keep its reported schedule for the remainder of the issues:
[O]pposition 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.
Denial of the stat means marriages will continue as the court weighs these issues.
By Scottie Thomaston
UPDATE 12:50ET roponents’ 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
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.
“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.”
By Scottie Thomaston
- 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.