Prop 8 lands
back in court
by Matthew S. Bajko
It is beginning to feel like zombie litigation, as the legal wrangling over California's same-sex marriage laws refuses to die.
Once again the state's Supreme Court justices are being asked to weigh in on the matter, while a similar cast of litigants, with some new players, are filing dueling briefs over whether or not same-sex couples throughout the Golden State can legally wed.
In the latest round of arguments, the group Protectmarriage.com contends that the only same-sex marriages allowed to be performed in California were those of the two plaintiff couples that sued to overturn Proposition 8, the voter-passed ban on same-sex marriage, in federal court.
Because those couples married last month, the anti-gay group is contending that none of the 58 counties should be allowed to marry additional same-sex couples. Instead, Protectmarriage.com claims that Prop 8 is still in effect.
San Francisco City Attorney Dennis Herrera has decried the lawsuit, now called Hollingsworth v. O'Connell, as "desperate" and is challenging it in court.
The case stems from the U.S. Supreme Court's June decision that the anti-gay group did not have standing to appeal lower court rulings that had declared Prop 8 unconstitutional. That led the 9th U.S. Circuit Court of Appeals on June 28 to lift its injunction against a federal district court ruling that found Prop 8 to be unconstitutional.
Governor Jerry Brown issued an edict that the decision applied statewide, leading all California counties to resume marrying same-sex couples.
Yet the Prop 8 backers argue that state officials did not have the authority to say all county clerks had to resume marrying same-sex couples since only L.A. and Alameda were parties to the federal litigation, known as Hollingsworth v. Perry.
"The Perry court's authority was limited to providing injunctive relief for the four plaintiffs in that case. Because those plaintiffs have recently been married, all relief due under that injunction has already been provided, and therefore none of the county clerks are required by that injunction to stop enforcing Proposition 8 in the future," states the Protectmarriage.com's petition with the court.
In agreeing to consider the matter, the state court did refuse Protectmarriage.com's request that it immediately halt the marriages of same-sex couples throughout California.
Following that decision, San Diego County Clerk Ernest J. Dronenburg Jr. filed a similar suit with the state court last Friday, known as Dronenburg v. Brown. Dronenburg is also arguing that Brown did not have the authority to order elected county clerks to once again marry same-sex couples.
Rather, Dronenburg claims he has the right to determine whom to issue marriage licenses to and is not bound by the U.S. Supreme Court's ruling in the Prop 8 case. He also asked the state court to end the same-sex marriages while it reviews the matter, though his request was rejected by the justices Tuesday.
In her response on behalf of state officials filed with the state court July 22, Attorney General Kamala Harris asked the court to deny Dronenburg's stay request because he "has no likelihood of success on the merits." She added that his lawsuit is an "impermissible collateral attack" on the federal district court's ruling against Prop 8.
In August the justices are expected to announce if they will hear oral arguments in either case.
This week Dean Logan, the Los Angeles County clerk, and Patrick O'Connell, Alameda County's clerk, whose offices were party to the federal lawsuit, both asked the state court to reject the Protectmarriage.com lawsuit in order to avoid a "conflict in law" that could put them in "an untenable position" of having to comply with one judicial order that would be in contempt of another.
Monday, July 22 Herrera filed a similar response with the court on behalf of the city and county of San Francisco, and the counties of Santa Clara, Santa Cruz, and Sonoma.
"This lawsuit goes beyond desperation," stated Herrera. "The opponents of marriage equality have argued that the rule of law doesn't apply, and that when a federal court says a law is unconstitutional, it somehow has no effect on whether it can still be enforced – even in defiance of a decisive federal judgment. But no one can enforce an unconstitutional law, not the state, not a county clerk, and not a small group of misguided advocates who don't seem to understand when they've lost."
Twenty elected county clerks, including those in Contra Costa, Monterey, and Napa, joined in a separate filing Monday to also ask the court to reject Protectmarriage.com's lawsuit. Written by Monterey County Counsel Charles J. McKee, the petition noted that the state Supreme Court already ruled in an earlier marriage equality case, Lockyer v. the City and County of San Francisco, that county clerks and recorders serve "under the supervision of state officials" when it comes to administering marriage laws.
"This is necessary to ensure uniformity in the administration of the marriage laws," states the brief. It added that without such a determination, the county clerks would be subject to "legal uncertainty and require them to make independent determinations about their duties under state law."
The Lockyer case stemmed from the decision of former San Francisco Mayor Gavin Newsom in early 2004 to ignore California's anti-gay marriage statutes and order the city clerk to grant marriage licenses to same-sex couples. The state court annulled the more than 4,000 weddings that took place that winter after determining such authority lied with state officials and not Newsom.