Same-sex marriages in California will not end any time soon.
In a one-line order, the Supreme Court, without comment, denied a request to immediately block county clerks from issuing marriage licenses to gay and lesbian couples. The court will now consider ProtectMarriage.com‘s broader legal argument that Proposition 8 should remain in force in California, considered a longshot by most legal experts.
“Like a chicken with its head cut off, Proposition 8 is trying to act alive, even though it has no real chance of being revived,” said Vikram Amar, a UC Davis law professor.
Proposition 8 backers last week asked the state Supreme Court to intervene, arguing the U.S. Supreme Court’s decision in June did not end the legal battle over California’s 2008 voter-approved gay marriage ban.
Austin Nimocks, an Alliance Defending Freedom attorney defending Proposition 8, expressed disappointment the state justices did not halt the marriages. But he vowed that the group would “continue to urge the court to uphold the rule of law.”
In June, the U.S. Supreme Court found the ballot measure’s sponsors did not have a legal right to defend the law in place of the governor and attorney general, both of whom consider it unconstitutional. As a result, the case reverted to a federal judge’s 2010 ruling striking down Proposition 8 because it violated the equal protection rights of same-sex couples.
Gov. Jerry Brown and Attorney General Kamala Harris instructed county clerks to begin issuing marriage licenses to same-sex couples. But Proposition 8’s defenders maintain the 2010 ruling only applied to the two couples and two counties (Alameda and Los Angeles), involved in the legal fight.
In last week’s filing, Proposition 8’s lawyers told the state Supreme Court that it should leave the gay marriage ban intact in at least 56 of the state’s 58 counties, arguing the state has improperly undermined a voter-backed initiative. The group has called the state’s position on Proposition 8 “lawless.”
Harris, in court papers filed Friday, urged the justices to stay out of the case. Legal experts say the state Supreme Court is unlikely to restore Proposition 8.
Erwin Chemerinsky, dean of UC-Irvine’s law school, said the state court does not have the authority to limit the scope of a federal court order, which, as it stands, invalidated Proposition 8. He added that he expects Proposition 8’s supporters to try again in the federal courts if they fail in the California Supreme Court.
Meanwhile, if the state Supreme Court does side with ProtectMarriage.com, it could cast some doubt over the same-sex marriages that have occurred since late June. The state Department of Health, which oversees marriage licenses, does not have figures on the number of gay marriages in recent weeks, but clerks around the state have reported a steady influx of same-sex couples marrying since the Supreme Court decision.
Proposition 8’s supporters did not argue those marriages should be voided but suggested the state is marrying “ineligible” couples.
Legal experts doubted those marriages would be invalidated because the U.S. Supreme Court refused to block them after June’s ruling. They likened the situation to the estimated 18,000 same-sex couples who married in 2008, after the state Supreme Court struck down California’s previous gay marriage ban.
“You have a court order that went into effect June 28 saying same-sex couples could marry,” Chemerinsky added.
The state Supreme Court has given both sides until early August to file all their legal arguments.
Howard Mintz covers legal affairs. Contact him at 408-286-0236 or follow him at Twitter.com/hmintz.
