UPDATED 4:42 p.m. The California Supreme Court on Monday afternoon refused to order county clerks throughout the state to stop issuing marriage licenses to same-sex couples. The state court noted on the docket for the case (Hollingsworth v. O’Connell, S211990) that it had refused a stay or injunction that would immediately mean that licenses would be allowed only to opposite-sex couples in the state. Because the docket notation did not mention the state’s plea to deny all relief to the supporters of the ban on same-sex marriage, the larger issue of whether “Proposition 8” remains in force anywhere in the state presumably will go forward before the state’s highest court under an already existing briefing schedule. July 22 is the due date for state officials to react to the broader question. (See the final entries on this docket sheet.)

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With sponsors of California’s ban on same-sex marriage arguing that the state’s Supreme Court has full authority to keep that ban in place throughout the state, the latest legal feud over the issue is now set for at least a preliminary ruling. The defenders of “Proposition 8” set the stage for a decision by the state court by filing a reply brief at midday Monday.

Some uncertainty hangs over gay and lesbian marriage rights in the nation’s largest state nearly three weeks after the U.S. Supreme Court had appeared to clear the way for those couples to wed, with its decision in Hollingsworth v. Perry. A series of legal maneuvers by the “Proposition 8” supporters has put the issue back before the state’s highest court, which has given signs that it intends to act speedily.

At this point, the seven-judge tribunal that sits in San Francisco has sharply conflicting arguments before it: a claim by state officials that marriage equality is now fully established throughout California’s fifty-eight counties and that the state court will only get into conflict with the federal courts and put county clerks at legal risk if it acts now to stop such marriages, and a rival claim by “Proposition 8” backers that the right to marry is in effect in, at most, two counties, and that the state court has the authority and a legal duty to order the continued enforcement of that ban in the other fifty-six counties.

There is also a direct conflict over what the two sides say the state court should do at this point: state officials have said it should refuse to get involved at all, and should deny immediately all of the claims of the ban’s supporters, while the “Proposition 8” legal team has said that the court should act now to put everything on hold until it can rule finally on the legal status of the ban under California law.

State officials are relying on their interpretation of a ruling in August 2010 by a federal district judge in San Francisco, striking down “Proposition 8” under the federal Constitution. There is nothing left that the California Supreme Court can do, they assert. The ballot measure’s defenders are relying on a provision in the state constitution that says that state officials must continue to enforce state law until a definitive court ruling invalidates it. That, they said, has not yet been done completely under the terms of the state constitution.

The latest round in the marriage dispute has unfolded very rapidly in the California Supreme Court. The demand for a stop to same-sex marriages in nearly all of the state was filed just three days ago, and already has been fully briefed on the preliminary issue of whether the state court will issue a temporary order blocking further issuance of marriage licenses to same-sex couples.

That is the issue that the state court presumably is now in a position to decide. The state court has also set a separate briefing schedule on whether it violates the state constitution for state officials and county clerks to be pressing ahead with the issuance of marriage permits for gays and lesbians. That separate briefing schedule would run through August 1.

When the U.S. Supreme Court ruled on June 26, the Justices had before them only the “Proposition 8” case as it had come to them through the federal courts. Following the decision in 2010 by since-retired District Judge Vaughn R. Walker finding the ban on same-sex marriage invalid under the federal Constitution, the Ninth Circuit Court had also found it invalid, but on narrower legal reasoning.

The “Proposition 8” backers had taken the case on to Washington, but the Hollingsworth decision declared that they had no legal right to pursue that appeal. That had the effect of wiping out the Ninth Circuit decision, but not Judge Walker’s decision. The Ninth Circuit swiftly acted to put Judge Walker’s decision into effect; it had been on hold.

Judge Walker had moved to enforce his decision against “Proposition 8” by ordering state officials, along with “all persons under the control or supervision” of those officials, to stop enforcing the measure’s ban on same-sex marriages. The meaning of the phrase in quotation marks is at the center of the case now that the ban’s supporters have sought help from the state Supreme Court.

State officials have interpreted Judge Walker’s order to apply not only to state officials, but to every one of the county clerks in all fifty-eight California counties. They also have argued that county clerks do not have independent authority to issue marriage licenses, but do so only under the overall control of state officials. Thus, state officials insist that the ban on same-sex marriage is dead, across California.

By contrast, the supporters of “Proposition 8” contend that county clerks do not operate under state control, and that Judge Walker’s order could not apply anywhere except, perhaps, in Alameda and Los Angeles Counties. Those were the two counties in which clerks had refused to issue marriage licenses to same-sex couples, because of “Proposition 8,” and those clerks had been sued in Judge Walker’s court, along with state officials.

In the briefing filed over the weekend on the question of whether the state court will temporarily order county clerks to stop issuing marriage licenses to gays and lesbians, the two sides energetically disputed the state court’s authority to decide who is covered by the Walker order.

State officials say that is purely a question of federal law and that, if the “Proposition 8” supporters want to raise issues over the scope of the order, the only place to do that would be back in U.S. District Court. On the other side, though, the ban’s supporters say that the question of whether county clerks are under the “control or supervision” of state officials is purely a question of state law, and thus can be raised only in the state courts.

There is one other legal dispute between the two sides that may figure in the action, or inaction, of the state Supreme Court. That is the question of whether the state’s highest court will agree to take on this new controversy itself, rather than having it play out first in a lower state court. The supporters of the ban argued that the issue is of such importance to state law that the highest state court should decide it promptly itself.

In the meantime, county clerks across California have not yet weighed in on the dispute, even though their powers and their ultimate legal risk of disobeying Judge Walker’s order loom large in the background. State officials have argued that no county clerk has come forward to raise an issue about what their legal duty is now, but the ban’s supporters have replied that the county clerks simply have not been heard from as yet.

Recommended Citation: Lyle Denniston, Marriage dispute ready for ruling (UPDATED: Stay denied), SCOTUSblog (Jul. 15, 2013, 2:00 PM), https://www.scotusblog.com/2013/07/marriage-dispute-ready-for-ruling/