Gay marriage: Opponents ask California Supreme Court to enforce ban

Lawyers representing proponents of the Proposition 8 ban on same-sex marriage in California have not given up an effort to enforce the ban, despite a US Supreme Court ruling two weeks ago that opened the way for resumption of gay marriage in the state.

On Friday, the Prop. 8 lawyers asked the California Supreme Court to intervene and order state officials to stop issuing marriage licenses to gay men and lesbians.

County clerks across California have been issuing such marriage licenses since June 28.

Legal analysts called the effort a long shot. It may mark the last legal skirmish in California over same-sex marriage.

In a 66-page motion, lawyers with ProtectMarriage said that California officials lack the necessary authority to permit same-sex couples across the state to marry.

They said that the US Supreme Court did not address the constitutionality of Prop. 8 and that a federal judge acted beyond his authority when he ordered officials to permit and recognize same-sex marriages throughout the state.

As a result, these lawyers said, the ban on gay marriage is still in force throughout most of California.

“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 Austin Nimrocks, a lawyer with Alliance Defending Freedom, which is supporting the Prop. 8 litigation.

Some legal analysts have questioned whether the federal judge in the Prop. 8 case overstepped his power when he issued a statewide injunction blocking the same-sex marriage ban. They suggest that the judge had the power to authorize the marriage of the two same-sex couples who litigated the issue and won. But it is unclear whether his sweeping statewide order allowing gay marriage in all 58 counties was proper.

Despite that lingering question, California officials, including Gov. Jerry Brown (D) and Attorney General Kamala Harris, moved quickly in late June to encourage each of California’s 58 county clerks to begin issuing same-sex marriage licenses.

Prop 8. supporters said the action was improper.

“The urgent need to prevent state officials’ attempt to overrun a constitutional initiative ... calls for this Court to intervene and breathe enforcement life into Proposition 8,” Andrew Pugno of ProtectMarriage wrote in his motion.

“Should this Court abstain from granting the relief requested, 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,” Mr. Pugno said.

The action comes two weeks after the US Supreme Court declared that supporters of the Prop. 8 ban lacked legal authority to defend the measure in court. The justices vacated a federal appeals court ruling in the case, Hollingsworth v. Perry, but left intact the federal judge’s decision invalidating the ban on same-sex marriage.

In their motion to the California high court, the Prop. 8 lawyers said that state officials are required to enforce existing laws – including Prop. 8 – until an appellate court has declared the measure unconstitutional.

Since the Supreme Court invalidated the federal appeals court’s decision in Hollingsworth v. Perry, state officials must continue to enforce the ballot measure in jurisdictions not covered by the judge’s order, they said.

“The Ninth Circuit’s decision in Perry has been vacated; hence there is no appellate decision holding that Proposition 8 is unconstitutional,” the motion said. “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.”