SAN FRANCISCO (AP) — Opponents of same-sex marriage demanded Friday that the California Supreme Court immediately halt the practice that recently resumed in the nation’s largest state after a nine-year legal battle.
The group that sponsored voter-approved Proposition 8, which banned same-sex marriages in 2008, launched a new, two-pronged legal attack in what one expert described as a last-ditch argument with little chance of succeeding.
In its petition, ProtectMarriage argued that state officials who began issuing marriage licenses to gay couples had incorrectly interpreted a June 24 U.S. Supreme Court ruling.
The high court ruled that ProtectMarriage had no “standing” to challenge a previous ruling by the 9th U.S. Circuit Court of Appeals that struck down Proposition 8.
On Friday, ProtectMarriage argued in its petition that Proposition 8 remains California law because the U.S. Supreme Court didn’t rule directly on the constitutionality of same-sex marriages in what is widely called the “Perry” case.
“The Ninth Circuit’s decision in Perry has been vacated,” the petition stated, “hence there is no appellate decision holding that Proposition 8 is unconstitutional.”
Therefore, the petition concluded, the Proposition 8 ban on same-sex marriages is still in force.
The petition also argued that the original lawsuit filed in San Francisco named only the county clerks of Los Angeles and Alameda counties. It said the ruling doesn’t reach the 56 other county clerks, who must continue to abide by the marriage ban passed by Proposition 8.
The petition argues that county clerks are independent state officials and the state registrar — under orders from Gov. Jerry Brown and the California Attorney General Kamala Harris — had no authority to direct them on June 26 to begin issuing same-sex marriage licenses.
Late Friday Harris filed a brief urging the California Supreme Court to deny the request to stop counties from issuing marriage licenses to same-sex couples.
“Today’s filing by the proponents of Proposition 8 is yet another attempt to deny same-sex couples their constitutionally protected civil rights. It is baseless and we will continue to fight against it,” Harris said.
“The Legislature has not imbued the state registrar with supervisory authority or control over county clerks issuing marriage licenses,” the ProtectMarriage petition stated.
Ted Olson, one of several high-profile attorneys who represented same-sex couples in the courts, called the petition “utterly baseless.”
Olson said any county clerk refusing to follow the state’s orders to issue same-sex marriage licenses faced contempt of court charges and federal civil rights lawsuits.
“Proponents’ latest effort to stop loving couples from marrying in California is a desperate and frivolous act,” Olson said.
University of California, Davis law professor Vikram Amar predicted the state Supreme Court would reject the petition and keep same-sex marriages intact.
Amar said the petition’s main arguments appear to fall only under the jurisdiction of federal judges. Since the U.S. Supreme Court has already banned ProtectMarriage and its allies from defending Proposition 8 in federal court, it appears they have almost no legal recourse, he said.
“My guess is that the California Supreme Court will not be eager to wade into this because so much of this turns on federal questions,” Amar said.
A ruling is not expected until at least Aug. 1, the last day the California Supreme Court said it would accept written arguments on the matter.
The state Supreme Court in 2008 ruled 4-3 that same-sex marriages were legal, which prompted marriage foes to place Proposition 8 on the ballot. Since then, two of the justices who voted for gay marriage have retired.