Metropolitan News-Enterprise


Tuesday, July 16, 2013


Page 1


High Court Allows Same-Sex Marriages to Continue in State




The California Supreme Court yesterday declined to stop same-sex marriages from taking place in the state.

In a brief order signed by Chief Justice Tani Cantil-Sakauye, the court denied a stay sought by the official proponents of Proposition 8, who petitioned the court Friday in what Attorney General Kamala Harris called a “last-ditch effort to circumvent” the injunction issued by since-retired U.S. District Judge Vaughn Walker in 2010.

The injunction had been stayed while on appeal. But the U.S. Supreme Court ruled last month that the proponents, who brought the appeal after state officials refused to defend the measure, had no standing to do so, and the Ninth Circuit quickly lifted the stay.

With same-sex couples having married in the state in the last two weeks, the petitioners argued Friday that the court should halt the unions until it can rule on their claims, including the argument that because the Supreme Court did not rule on its merits, there is no controlling authority declaring Proposition 8 unconstitutional and officials are required to enforce it.

“The Ninth Circuit’s decision in Perry [v. Hollings­worth] has been vacated, hence there is no appellate decision holding that Proposition 8 is unconstitutional,” the petition asserted.

Petitioners’ Claim

The petitioners claim that county clerks are independent state officials and the state registrar of vital statistics—under orders from Gov. Jerry Brown and Harris—had no authority to direct them on June 26 to begin issuing same-sex marriage licenses.

“The Legislature has not imbued the state registrar with supervisory authority or control over county clerks issuing marriage licenses,” the petition said.

They also argued that if the injunction is effective, the only county clerks who are required to abide by it are those in Los Angeles and Alameda counties, who are named defendants in the case because the plaintiffs live in those counties.

The high court Friday gave the attorney general—who represents herself, Brown, the director of the Department of Public Health, and the state registrar in the case—until July 22 to file formal opposition to the petition, and gave the proponents until Aug. 1 to reply.

Informal Opposition

Harris, in her informal opposition filed Friday night, argued that the plaintiffs are suffering no irreparable harm as a result of same-sex marriage continuing in the state. And an order blocking county clerks from issuing marriage licenses, she said, would subject them to contempt proceedings in federal court.

Indeed, Harris argued, there is no basis for any further proceedings in state court.

“After years of litigation, there is now a final determination that Proposition 8 is unconstitutional,” the attorney general wrote. “To revive Proposition 8, as petitioners have asked, by ordering county officials to enforce it would command the violation of gay and lesbian Californians’ federal constitutional rights.”

If these issues can be litigated at all, Harris asserted, it has to be in federal court. The petitioners previously sought a stay from the U.S. Supreme Court, but Justice Anthony Kennedy—who had dissented from the 5-4 ruling denying them standing—turned down their application.

Walker held in his 2010 ruling that the 2008 initiative that amended the state Constitution to limit marriage to one man and one woman violated the rights to due process and equal protection under the U.S. Constitution. The judge stayed the injunction pending appeal.

The Ninth U.S. Circuit Court of Appeals affirmed Walker’s ruling, but left Proposition 8 in place, until its action two weeks ago. 


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