Attorneys representing the official proponents of Proposition 8, a California voter-approved ban on same-sex marriage, asked the state's Supreme Court Friday to order county clerks to enforce the state's marriage amendment, essentially asking to stop the state's same-sex weddings.
Alliance Defending Freedom says that the U.S. Supreme Court's June 26 decision in Hollingsworth v. Perry did not rule on Proposition 8's constitutionality, and the district court's 2010 injunction does not apply statewide.
"Our current lawsuit asks the California State Supreme Court to affirm and enforce the rule of law – declaring that in light of the Supreme Court's decision not to address the validity of Prop 8, that constitutional amendment remains the voter-approved law of the land," ADF stated shortly after announcing its petition to California's high court.
Prop. 8 was passed by 52 percent of California voters in November 2008, months after the California Supreme Court had legalized same-sex marriage in May that year. The state's high court upheld the amendment but did not void same-sex marriages that occurred between its 2008 ruling and the passage of Prop. 8.
ADF Senior Counsel Austin R. Nimocks declared that California's county clerks should abide by the state constitution.
"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 Nimocks. "The U.S. Supreme Court did not rule on the constitutionality of Proposition 8, and the district court's injunction does not apply statewide; therefore, county clerks should abide by the state constitution."
Immediately after the U.S. Court of Appeals for the 9th Circuit lifted its stay of the district court order on June 28, California State Registrar Tony Agurto ordered all county clerks to begin issuing marriage licenses in violation of state law, stated ADF. Soon thereafter, the plaintiffs in the Supreme Court case were married and other same-sex couples have followed and married as well.
ADF says that even though the registrar does not have the authority to issue such orders to county clerks, California Attorney General Kamala Harris publicly stated that she will take legal action against any clerk who declines to follow the registrar's directive.
Lawyers at ADF say its petition filed in Hollingsworth v. O'Connell demonstrates that the district court's 2010 injunction does not bind all county clerks. Because of that, the petition explains, "This Court's case law requires executive officials charged with ministerial duties to execute those duties regardless of their or others' views about the constitutionality of the laws imposing those duties."
Additionally, according to the petition, "Article III, section 3.5 of the California Constitution prohibits government agencies and officials from declaring state law unenforceable, or declining to enforce state law, on the basis that the law is unconstitutional, unless an appellate court has first made that determination," ADF stated. "The Ninth Circuit's decision in Perry has been vacated; hence there is no appellate decision holding that Proposition 8 is unconstitutional. 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."
"The more than 7 million Californians that approved Proposition 8 have a right to see the rule of law – and the constitutional initiatives that the people enact – respected," Nimocks said.
ADF attorneys filed the petition together with Andrew P. Pugno, general counsel for ProtectMarriage.com, the banner organization for the official proponents and campaign committee of Proposition 8.
Theodore Olson, a lawyer for the same-sex couples who challenged Prop. 8 in federal court, called the sponsors' court filing "utterly baseless," according to the San Francisco Chronicle.
"Any county that defies the federal court's injunction is at risk not only of contempt of court but also a lawsuit" for damages, Olson said in a statement. "Proponents' latest effort to stop loving couples from marrying in California is a baseless and frivolous act."