Same-sex marriages have resumed in California as of June 28 and, inevitably, opponents of marriage equality are doing everything they can to try to put a halt to this.
ProtectMarriage.com, the very group that brought us Proposition 8, the 2008 constitutional ban on same sex marriage in California, is requesting that the California Supreme Court order county clerks to deny marriage licenses to same-sex couples. By issuing what he calls “gender-neutral marriage licenses,” Folsom attorney Andrew Pugno, who filed the petition on behalf of ProtectMarriage.com, is claiming that the state’s county clerks are now “lawlessly defying” Proposition 8.
By a vote of 4-3, California’s Supreme Court had ruled that gays had a state constitutional right to marry in 2008. Proposition 8 was passed later in the same year; the court then ruled in a 6-1 decision that it was a valid constitutional amendment.
Lawyers representing gay couples who fought Proposition 8 say that they had expected ProjectMarriage.com’s latest challenge to marriage equality and are prepared to respond to it. Simply put, a state court “may not interfere with a federal court’s decision,” the attorneys note.
ProtectMarriage.com’s latest 50-page challenge is centered on a long-running controversy about whether a 2010 decision by U.S. District Court Judge Vaughn to strike down Proposition 8 as unconstitutional should apply statewide.
As the Los Angeles Times points out, the federal suit against Proposition 8 was not filed as a class action suit; the California governor, attorney general and the clerks of Alameda and Los Angeles counties were specifically named as defendants. But Judge Walker’s injunction was also said to apply to “all persons under the control or supervision of defendants.” Accordingly, attorneys who have challenged Proposition 8 argue that state officials do indeed have authority over matters of marriage, including directing county clerks on how to handle marriage licenses.
ProjectMarriage.com Appeals to Legal Technicalities to Oppose Marriage Equality
ProjectMarriage.com is basing its latest challenge on this point, arguing that county clerks are not actually under the control of state officials because there is no law granting them supervisory powers. By its reasoning, the state Supreme Court should accordingly “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.”
Central to ProjectMarriage.com’s challenge is a 2011 order by U.S. 9th Circuit Court of Appeals Judge Stephen Reinhardt. The judge was on a panel that examined the ballot measure and observed that one lawyer contesting Proposition 8 had said in court that Judge Walker’s injunction “’determines only that Proposition 8 may not be enforced in two of California’s 58 counties.”
But as the Los Angeles Times explains, the “high-profile legal team that filed the federal lawsuit has attributed Reinhardt’s statement to a misunderstanding that occurred when the 9th Circuit was holding arguments on Proposition 8.” In a June 26th ruling, the Supreme Court said that Pugno “lacked the legal right” to appeal the now-retired Judge Walker’s injunction. That is, the 9th Circuit should not have even considered the case in the first place.
After the Supreme Court’s June 26th ruling and with a legal opinion from Atty. Gen. Kamala D. Harris in hand, California governor Jerry Brown said that he was “bound by the trial court injunction” to direct all county clerks to grant marriage licenses to same-sex couples.
A Last-Gasp Effort By Same-Sex Marriage Opponents
Legal experts describe ProjectMarriage.com’s challenge as an “extreme long shot.” For one thing, it is highly unlikely that a state court would intervene in a federal matter, UC Davis law professor Vikram Amar points out. ProjectMarriage.com could still try to file its case in a county Superior Court, but such is considered unlikely.
On Friday, the California Supreme Court responded to ProtectMarriage.com’s challenge by asking for an “informal opposition” from the state and noting that, as Judge Walker’s order was filed in federal court, any further action regarding it must be addressed at the federal level. The California court routinely meets on Wednesday to address such petitions but could make a decision at any time. It could either simply refuse to intervene (on the basis that a federal matter is in question) or request written arguments.
Now that the U.S. Supreme Court has ruled to return marriage equality to California and struck down DOMA, opponents of marriage equality are drawing on splitting hairs and grasping at possible legal technicalities to deny LGBT people of their rights. It is a sign of how increasingly desperate anti-marriage equality proponents have become.
Photo from Thinkstock