SACRAMENTO – Today attorneys for ProtectMarriage.com, the official proponents of Proposition 8, filed a petition in the California Supreme Court against all of California’s 58 county clerks, and state officials, seeking to restore the enforcement of the state’s constitutional amendment limiting marriage to a man and a woman.
“The man-woman definition of marriage, as passed by the voters, is still a valid part of our state constitution. Yet county clerks statewide are lawlessly defying that law by issuing gender-neutral marriage licenses. We are asking California’s Supreme Court to restore the rule of law and the public’s confidence in the integrity of the initiative process,” said Andrew Pugno, general counsel for Proposition 8’s official proponents.
The lawsuit contends that at least 56 of the 58 county clerks must continue to follow Proposition 8 because they were not parties to the recent federal lawsuit against Prop 8, and that the state’s governor and attorney general have no legal authority to order local county clerks to disregard the state constitution.
Attorneys for the plaintiffs who challenged Prop 8 have repeatedly admitted that the 56 county clerks not involved in their case “are not directly bound by the injunction” against Prop 8, issued by a San Francisco judge in 2010. In fact, super-lawyer David Boies told the courts that “the scope of the injunction is quite limited”, and at least the 56 county clerks would remain free to “refuse a marriage license to a same-sex couple…without violating the injunction.” (See Petition, page 33.)
Following the U.S. Supreme Court’s determination that Prop 8’s official proponents lacked standing to defend the measure in federal court, the Ninth Circuit Court of Appeal’s ruling against Prop 8 was vacated, leaving no legal precedent—in either state or federal courts—declaring Prop 8 unconstitutional statewide. California’s constitution requires public officials to enforce any voter-passed initiative until an appellate court declares it to be unconstitutional statewide.
Pugno noted that the present case is remarkably similar to former San Francisco Mayor Gavin Newsom’s unsuccessful attempt to order the county clerk to disregard the man-woman legal definition of marriage. “The Supreme Court ruled unanimously that Mayor Newsom had no authority to instruct the county clerk to defy state law, and today we contend that the governor and attorney general don’t have that authority either,” Pugno said.
Under California Law, county clerks are independent local officials with the exclusive responsibility and authority to issue marriage licenses. (See Petition, pages 36 et seq.)
“This has become more than just a fight over marriage. The authority of local government officials, and the future of the initiative process itself, is put at grave risk if state officials are allowed to nullify a proposition by executive order, backed by no binding legal precedent. Now it is up to California’s highest court to breathe life back into the people’s power of initiative,” said Pugno.
Unlike in federal court, Prop 8′s official proponents have legal standing to bring today’s request to the State Supreme Court. In 2011, the California Supreme Court unanimously designated the official proponents to defend Prop 8 in lieu of government officials who refused to do so.
See also the media release by Alliance Defending Freedom, attorneys for the official proponents.