“The U.S. Supreme Court’s June 26 decision in Hollingsworth v. Perry did not rule on Proposition 8’s constitutionality, and the district court’s 2010 injunction does not apply statewide.” That is the view of a group called Alliance Defending Freedom, which filed a petition on Friday to ask the California Supreme Court to order the state’s county clerks to enforce the state’s marriage amendment.
“Our current lawsuit asks the California State Supreme Court to affirm and enforce the rule of law – declaring that in light of the Supreme Court’s decision not to address the validity of Prop 8, that constitutional amendment remains the voter-approved law of the land,” the group said in a statement Friday.
The filing was denounced by California Attorney General Kamala Harris.
“Today’s filing by the proponents of Proposition 8 is yet another attempt to deny same-sex couples their constitutionally protected civil rights. It is baseless and we will continue to fight against it,” Attorney General Harris said.
In a brief filed Friday with Governor Jerry Brown, Ms. Harris argues, “The petition for a writ of mandate is a last-ditch effort to circumvent the federal district court’s injunction, which operates directly against state and local officials. The Court should reject both the request for a stay and the petition because they are an impermissible collateral attack on the district court’s final judgment.”
They go on to argue, “This Court is not the proper forum to litigate the scope or validity of the district court’s injunction; that question is properly presented, if at all, to the federal district court. Further, petitioners do not seek to preserve the status quo but rather to upend it.”
Following the Supreme Court’s decision which found that the backers of Prop 8 lacked legal standing to protect the proposition, “they can identify no harm that would befall them.”
The Supreme Court ruled that in order to have standing, “the litigant must seek a remedy for a personal and tangible harm.”
As they note from case law: “All a federal court need determine is that the state has suffered a harm sufficient to confer standing and that the party seeking to invoke the jurisdiction of the court is authorized by the state to represent its interest in remedying that harm.”
“The public interest weighs sharply against issuing a stay in this case,” Ms. Harris argues. “After years of litigation, there is now a final determination that Proposition 8 is unconstitutional. To revive Proposition 8, as petitioners have asked, by ordering county officials to enforce it would command the violation of gay and lesbian Californians’ federal constitutional rights.”
However, ADF is arguing that the proper legal process was not followed in this case.
“Everyone on all sides of the marriage debate should agree that the legal process must be followed. Public officials should enforce the marriage amendment because they are not bound by the district court’s injunction,” said Senior Counsel Austin R. Nimocks. “The U.S. Supreme Court did not rule on the constitutionality of Proposition 8, and the district court’s injunction does not apply statewide; therefore, county clerks should abide by the state constitution.”
They argue, “Immediately after the U.S. Court of Appeals for the 9th Circuit lifted its stay of the district court order on June 28, California State Registrar Tony Agurto ordered all county clerks to begin issuing marriage licenses in violation of state law. Even though the registrar does not have the authority to issue such orders to county clerks, California Attorney General Kamala Harris publicly stated that she will take legal action against any clerk who declines to follow the registrar’s directive.”
The petition filed in Hollingsworth v. O’Connell demonstrates that the district court’s 2010 injunction does not bind all county clerks, according to ADF.
The petition argues, “This Court’s case law requires executive officials charged with ministerial duties to execute those duties regardless of their or others’ views about the constitutionality of the laws imposing those duties.”
Additionally, according to the petition, “Article III, section 3.5 of the California Constitution prohibits government agencies and officials from declaring state law unenforceable, or declining to enforce state law, on the basis that the law is unconstitutional, unless an appellate court has first made that determination. The Ninth Circuit’s decision in Perry has been vacated; hence there is no appellate decision holding that Proposition 8 is unconstitutional. Petitioners are thus entitled to a writ of mandate requiring Respondents to comply with state law defining marriage as a union between a man and a woman.”
“The more than 7 million Californians that approved Proposition 8 have a right to see the rule of law–and the constitutional initiatives that the people enact–respected,” Mr. Nimocks said.
UC Irvine Law School Dean Erwin Chemerinsky told the LA Times that the court would likely reject this bit “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,” Professor Chemerinsky said. “When federal courts ordered desegregation, state courts could not limit the scope of their orders. I don’t see any difference.”
“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 Andy Pugno, who is general counsel for ProtectMarriage, and who filed the petition along with ADF.
They argue that there is no law that gives the governor or any other official control over county clerks in the issuance of marriage licenses.
However, in the meantime, counties like Yolo County continue to marry same sex couples.
The Sacramento Bee has an article on Freddie Oakley’s efforts. A few weeks ago the Yolo County Clerk said, “It’s astonishing to me how fast the sort of tide of culture has changed to accept marriage equality,” she said. “I would have to say that when I joined the protest in 2007, I thought we were in for a much longer haul.”
“In a way it boils down to respect for the law,” she said. “Because folks have really gone through the process available to any American or group of Americans who want to challenge the status quo. They have used every peaceful reasonable means.”
“I did not think we’d see a payoff this soon, but I really give all of the credit in the world to all of the folks who did not give up the fight,” Ms. Oakley added.
Even if this seemingly longshot legal maneuver were successful, how Prop 8 proponents expect to be able to roll back the huge tide of public opinion, that has turned sharply in recent years, remains to be seen.
—David M. Greenwald reporting