SAN FRANCISCO -- 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.

FULL COVERAGE: Proposition 8


In its 50-page challenge, ProtectMarriage framed its case as a matter “concerning the rule of law and limitations on public officials’ authority.”

Unless the court intervenes, “the end result will be to allow one federal district judge — empowered by state officials who openly advocated for and ceded to Proposition 8’s demise — to nullify a constitutional initiative approved by more than seven million voters,” the challenge said.


The California Supreme Court meets on Wednesdays to decide such petitions, but could act at any time. The court could simply refuse to intervene or could request written arguments before making a decision.

The new challenge deals with a long-running controversy over the reach of a 2010 injunction issued by retired Chief U.S. District Judge Vaughn R. Walker.


The San Francisco federal judge’s injunction against Proposition 8 said it applied to the named defendants — state officials and two county clerks — and “all persons under the control or supervision of defendants.”

ProtectMarriage contends that county clerks are not under the control of state officials because no law gives them supervisory powers. Attorneys who challenged Proposition 8 counter that state officials have authority over matters of marriage and may direct county clerks on how to handle marriage licenses.


The federal suit against Proposition 8 was not filed as a class action on behalf of all gay couples. It named state officials and two counties, Los Angeles and Alameda, where the same-sex challengers live, as defendants.

Friday’s challenge cited a statement in a 2011 order by U.S. 9th Circuit Court of Appeals Judge Stephen Reinhardt, who was on a panel that examined the ballot measure.


Reinhardt noted that a lawyer arguing against Proposition 8 had admitted in court that Walker’s injunction “’determines only that Proposition 8 may not be enforced in two of California’s 58 counties.”

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.


The Supreme Court later determined that the 9th Circuit should not even have considered the case because ProtectMarriage lacked the legal right to appeal Walker’s injunction in place of state officials, who refused.

The June 26 high court ruling left in place only Walker’s decision. Brown, armed with a legal opinion from Atty. Gen. Kamala D. Harris, said that he was bound by the trial court injunction to direct all county clerks to marry same-sex couples.


Legal analysts described ProtectMarriage’s action as an extreme long shot. Gay couples in California have been marrying since June 28, when the 9th Circuit lifted a legal hold on Walker’s decision.

[Updated 10:25 a.m., July 12: UC Davis law professor Vikram Amar said the California Supreme Court was likely to view ProtectMarriage’s action as an invitation to intervene in a federal matter.


“The California Supreme Court will likely stay out of this and say the scope of Judge Walker’s order is a matter for the federal courts to determine,” Amar said. “State courts generally won’t get into the business of construing federal court orders. They leave that to the federal courts.”

Amar also questioned whether the state constitutional provision cited by the Proposition 8 proponents would even apply to a governor’s action.]


Former California Supreme Court Justice Carlos R. Moreno said in an interview that he expected his former colleagues to reject Friday’s challenge.

Santa Clara University law professor Gerald Uelmen, an expert on the state constitution, agreed. He said the constitutional provision cited by ProtectMarriage did not apply to constitutional amendments. Proposition 8 amended the state constitution.


ProtectMarriage named the clerks in all of the state’s 58 counties as defendants. The group has long contended that Walker’s injunction applied only to the two couples who filed the federal lawsuit. Some legal scholars argue that it only applied to the two counties where the plaintiffs live.

If the San Francisco-based Supreme Court refuses to review the case, ProtectMarriage could still file the challenge in a county Superior Court, although that prospect is unlikely.


The state high court ruled in a 4-3 vote in 2008 that gays had a state constitutional right to marry. After Proposition 8 passed later that year, the court ruled in a 6-1 decision that it was a valid constitutional amendment.

“Once more the fate of Proposition 8 finds itself before this court,” ProtectMarriage said in its filing “And once again, the people ask this court to affirm that exercise of their initiative power.”


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