UPDATED Saturday 7:03 a.m.  State officials in California on Friday night urged the state Supreme Court to refuse to get involved in the issue of enforcing the marriage ban in Proposition 8, arguing that any such action would set up a conflict with the federal courts and put county officials at legal risk.  The officials’ response is here.   The blog is continuing to monitor developments.

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UPDATED Friday 7:28 p.m.   The California Supreme Court has ordered state officials to reply by 11 p.m. Eastern time tonight to the request for an immediate order to stop the issuance of marriage licenses to gays and lesbians.  The order appears on the case docket, here.

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UPDATED Friday 5:35 p.m.  The California Supreme Court has now assigned a docket number to this petition: S211990.   The court provides a notification procedure for following the case; to sign up, click here.

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Arguing that the right of same-sex couples to get married in California actually exists now in no more than two of the state’s fifty-eight counties, the sponsors of the “Proposition 8″ ban on such unions returned to the California Supreme Court on Friday, seeking an order to block further marriage licenses for gays and lesbians.  The ballot measure’s advocates asked for immediate enforcement of the ban approved by California voters in 2008.

This challenge had been expected since the Supreme Court on June 26 ruled that the “Proposition 8″ backers did not have a right to be in federal court to defend their measure.   The Court’s decision in Hollingsworth v. Perry led state officials to order county clerks all across California to start granting marriage rights to same-sex couples.  Since then, the measure’s backers have been studying legal options to try to head off such marriages.  (UPDATE: The filing drew an immediate reaction from a lawyer for same-sex couples in the case; it can be read here.)

Instead of returning to lower federal courts, they chose to go to the state’s Supreme Court, arguing that that tribunal is the only one that can now provide a remedy for their support of “Proposition 8.”   The state’s highest court had ruled earlier that they had the legal right to become defenders of the measure when state officials refused to do so.

In the new ninety-two-page filing in Hollingsworth v. O’Connell, the proponents argued that the August 2010 decision by a federal judge in San Francisco striking down “Proposition 8″ only applied, legally, to the two couples who had pursued the court challenge.  Both of those couples have now been married.   Thus, the petition contended, not one of the state’s fifty-eight county clerks — the officers who grant marriage licenses — had authority to ignore the “Proposition 8″ ban for any other couples.

As a fallback argument, however, the petition asserted that the 2010 injunction against the measure only applied to county clerks in the two counties directly  involved in the lawsuit:  Alameda and Los Angeles Counties.  So, as an alternative argument, the petition asked the California Supreme Court to issue orders to at least the other fifty-six county clerks to continue enforcing the ban written into the state constitution by California voters.

Their plea for enforcement is based upon another provision in the state constitution which says that state officials must continue enforcing a state law that has been challenged until it has been found invalid by an appeals court.  The one appeals court that has ruled on the validity of “Proposition 8″ — the Ninth Circuit Court, which struck it down — has now been found by the Supreme Court’s decision not to have authority to have ruled on the measure because its sponsors lacked “standing” to defend it in a federal appeal.

It was the Ninth Circuit, though, that enabled same-sex marriages to begin after the Supreme Court ruled, by lifting an earlier order that kept such marriages on hold while the appeals went forward in the case of Hollingsworth v. Perry.   It was after that order had been lifted that state officials sent out official notices to all fifty-eight county clerks that same-sex marriage was now legal in California, and that they should start granting licenses to gays and lesbians.

The new challenge in the state supreme court was prepared by attorneys for a legal advocacy group, Alliance Defending Freedom, who have been representing the “Proposition 8″ sponsors in the case.   In announcing the new plea in state court, that organization said that the Supreme Court in Washington had not ruled on the constitutionality of the ballot measure.   And, it argued, “the District Court’s 2010 injunction does not apply statewide.”

That injunction, issued by since-retired U.S. District Judge Vaughn R. Walker, also was aimed at state officials, as well as the two county clerks involved.  But the proponents argued Friday that state officials lacked the authority to direct county clerks in the issuance of marriage licenses.

Judge Walker, the petition said, lacked “authority to order injunctive relief for anyone except the four plaintiffs in that case” — that is, the lesbian couple and the gay couple.  They represented only themselves, not other same-sex couples who wanted to marry, the challengers recalled.

Further, the petition contended, the Walker order is not binding on state officials — and could not be — because those state officials “do not possess authority to enforce” the ballot measure.   Thus, neither the state’s governor, its attorney general, or its license registrar could be required to carry out the Walker order, according to the petition.   No state official is in charge of the county clerks who are the ones who do issue the marriage licenses, the document said.

If the state Supreme Court does not act now, the petition asserted, “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 new challenge named each of the state’s fifty-eight county clerks, along with the state’s governor, attorney general, health department chief, and records registrar.

Here are the specific legal requests the sponsors made to the state court:

First, allow them to go forward directly in the state’s Supreme Court, because the only issues are legal, not factual, and because there is no other court that can provide legal relief.

Second, issue an order to the fifty-eight clerks to enforce “Proposition 8″ by issuing marriage licenses only to couples composed of one man and one woman — and thus no marriage licenses for same-sex couples.  (As an alternative, an order against the fifty-six clerks in counties other than Alameda and Los Angeles.)

Third, issue an immediate order to keep enforcement going while the new case unfolds in the state’s highest court.

Fourth, hold a hearing as soon as practicable on these requests.

Fifth, award the challengers their attorney’s fees.

The backers of “Proposition 8″ had tried to stop the issuance of marriage licenses to same-sex couples in the wake of the Supreme Court decision last month. They did so by asking Justice Anthony M. Kennedy, who handles emergency legal matters from the geographic area that includes California, to order the Ninth Circuit Court to put back into effect at least temporarily its order blocking same-sex marriages.   Justice Kennedy turned down that request without comment on June 30.

It is unknown how many marriage licenses have been issued to same-sex couples since then, but the number appears to be in the tens of thousands.

The move by the proponents in the California Supreme Court was a strong indication that they believe they will get a sympathetic response.  It was that tribunal which earlier had ruled — when asked for advice by the Ninth Circuit — that the backers of a ballot measure that won approval had a right under state law to defend it in court when state officials have backed away from doing that.

In that ruling, the state court had spoken with strong approval of the role of sponsors in carrying out laws that have been enacted by the state’s citizens acting as legislators at the ballot box.

However, the state court decision permitting them to stand in for the state was binding only as to the laws of California, and did not settle the question — under the U.S. Constitution’s Article III — whether they had a legal right to pursue their defense in federal court.  On that point, the sponsors lost in the Hollingsworth decision.

 

Posted in Hollingsworth v. Perry, Featured, Merits Cases, Same-Sex Marriage

Recommended Citation: Lyle Denniston, New test of California same-sex marriages (SATURDAY UPDATE), SCOTUSblog (Jul. 13, 2013, 7:03 AM), http://www.scotusblog.com/2013/07/new-test-of-california-same-sex-marriages/