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“Proposition 8” issue now ready (FURTHER UPDATED)

FURTHER UPDATED Monday 6:31 p.m.  The petition to withdraw the San Diego County clerk ‘s challenge is now posted on the state court docket.  It is here.


UPDATED Monday 12:01 p.m.  The San Diego County clerk’s press release, referred to below, can be read here.


With the planned withdrawal of one of the two attempts to stop same-sex marriages in California, the stage is now set for the California Supreme Court to act on the issue.  California news outlets reported Saturday that San Diego County Clerk Ernest Dronenburg had announced on Friday that he was withdrawing his separate challenge to the issuance of marriage licenses across the state.  That withdrawal has not yet been recorded on the state court’s docket, but presumably will be early next week.

The first attempt to revive the “Proposition 8” ban on same-sex marriages was filed by the sponsors of that ballot measure, and that remains pending.  The briefing on the merits of that challenge was completed last Thursday.  The final briefs have not yet been filed on Dronenburg’s separate challenge.   With that off the state court’s docket, the court presumably could act at any time.  Earlier, it had refused an emergency request in both cases for a temporary postponement of licensing gays and lesbians to wed.

Dronenburg was quoted in California media as saying: “Because I am dropping my action, the California Supreme Court can start tomorrow in making a decision in the lead case.”  He said that, in any event, his case covered the same ground as that of the measure’s sponsors, and said it was important for the challenge to be resolved promptly.  Both challenges made the argument that the federal court decision in 2010 striking down “Proposition 8” applied only to the two same-sex couples who had sued to overturn it, and that county clerks had no authority to refuse to continue enforcing the ballot measure’s ban on same-sex marriages for anyone else who applied.

State officials have argued strenuously that the federal judge’s ruling was intended to, and does, apply everywhere in the state’s fifty-eight counties.  State officials have issued explicit orders to the fifty-eight county clerks to issue licenses to same-sex couples who otherwise qualify to be married.

The dispute in California has unfolded in the wake of the U.S. Supreme Court’s decision in late June in the case of Hollingsworth v. Perry, declaring that the ballot measure’s sponsors had no legal right to be in court to defend the measure’s constitutionality.   After that ruling, the Ninth Circuit Court lifted an earlier delaying order in the federal case, and same-sex marriages began in a number of counties.  The Supreme Court said nothing about the constitutionality of “Proposition 8” but the ruling had the effect of making final the 2010 decision by U.S. District Judge Vaughn R. Walker nullifying the measure.





Recommended Citation: Lyle Denniston, “Proposition 8” issue now ready (FURTHER UPDATED), SCOTUSblog (Aug. 3, 2013, 10:20 PM),