Prop 8 Proponents Ask California Supreme Court to Halt Marriages

Two weeks after same-sex marriages resumed in California on June 28, the Proponents of Proposition 8 filed a petition with the California Supreme Court, seeking a stay of Judge Vaughn Walker’s 2010 Order and contesting the right of anyone other than the two same-sex couples who brought the federal court challenge against Prop 8 to benefit from that Order.  The Proponents, represented by attorneys from the misnamed Alliance Defending Freedom, an Arizona and D.C. based right-wing litigation group, argued that California Governor Jerry Brown and Attorney General Kamala Harris had misinterpreted Walker’s Order and unlawfully ordered all 58 county clerks in the state to resume issuing marriage licenses, and that those county clerks have a duty under the state constitution to continue enforcing “the law” under which only different-sex couples can marry in California. 

The Proponents asked the Supreme Court to put an immediate halt to issuance of marriage licenses and recording the marriages of same-sex couples, pending a determination on the merits of their argument.  The court rejected this request on July 15, but had previously indicated on July 12 that it would accept briefs from both sides on the issues raised by the Proponents.  The Proponents’ petition to the Supreme Court names as defendants not only those named as defendants in the original Perry v. Schwarzenegger case, but also the other 56 California county clerks. 

The law to which the Proponents refer, originally a statute adopted by voter initiative in 2000 as Proposition 22, was declared unconstitutional by the California Supreme Court in May 2008 in In re Marriage Cases, after which same-sex couples began marrying in California in June 2008. Then in November 2008, the voters approved Proposition 8, an initiative amendment to the California Constitution that used the same language as Proposition 22 and elevated it to the status of a constitutional provision.   This went into effect the day after the election and stopped the performance of marriages.  The California Supreme Court ruled in 2009 that Proposition 8 had been validly adopted, but that marriages performed prior to its adoption continued to be valid and recognized. 

The American Foundation for Individual Rights (AFER) filed suit in federal court, claiming that Proposition 8 violated the 14th Amendment’s due process and equal protection provisions.  Federal District Judge Vaughn Walker ruled in Perry v. Schwarzenegger in 2010 that Proposition 8 did violate the 14th Amendment, finding that same-sex couples have a federal constitutional right to marry on the same basis as different-sex couples, and issued an Order that states: “Defendants in their official capacities, and all persons under the control or supervision of defendants, are permanently enjoined from applying or enforcing Article I, Section 7.5 [Proposition 8] of the California Constitution.”

The defendants named in that case were the governor, the attorney general, the director of the state’s health department, and the county clerks in Alameda and Los Angeles Counties, whose refusal of marriage licenses to the plaintiffs gave the plaintiffs, two same-sex couples, standing to bring the lawsuit.  None of these defendants sought to appeal Walker’s decision, but the Proponents of Prop 8, who had been allowed to intervene in the lawsuit to defend their initiative, filed an appeal to the 9th Circuit, which agreed to stay Walker’s Order until the case was finally resolved.  After deciding, based on an advisory opinion from the California Supreme Court, that the Proponents had “standing” to appeal Walker’s decision, the 9th Circuit affirmed Walker’s decision on narrower constitutional grounds, and Proponents petitioned the Supreme Court for review.  In granting review, the Supreme Court added the issue of Proponents’ standing to appeal as a question to be argued. 

On June 26, 2013, the Supreme Court ruled, voting 5-4, that Proponents did not have standing to appeal Walker’s decision, and sent the case back to the 9th Circuit with orders to dismiss the appeal.  In his opinion for the Supreme Court, Chief Justice John R. Roberts, Jr., said that the district court did have proper jurisdiction of the case, however; the ruling on standing pertained only to the Proponents’ appeals.  Thus, dismissal of the appeals would leave Judge Walker’s decision as a district court ruling that was not appealed.  On June 28, the 9th Circuit dismissed the appeal as ordered by the Supreme Court, and lifted the stay, allowing Judge Walker’s Order to go into effect.

Anticipating these developments, Governor Brown had asked Attorney General Harris for an opinion about the scope of Walker’s Order.  Her June 3 letter to the governor, released publicly on June 26, said that the Order was “statewide” in scope and that the Department of Public Health (DPH) should instruct county officials that when the Order went into effect, “they must resume issuing marriage licenses to and recording the marriages of same-sex couples.”  DPH sent a notice to all county clerks to that effect, and on June 28, DPH sent a follow-up advisory that the stay had been lifted and the Order was in effect.  That afternoon, the plaintiff couples in the Perry case were married in ceremonies at Los Angeles and San Francisco city halls.  Since then, county clerks throughout the state have issued hundreds of licenses to same-sex couples.  There is no indication that county clerks have refused to issue licenses or argued that they are not bound by Walker’s Order to do so.

Spokespersons for the Proponents denounced these developments, arguing, as they had been doing for weeks prior to the decision, that a ruling against them on standing would benefit only the plaintiffs in the case.  They argued that Judge Walker, since retired, did not have authority as a trial judge to order relief for anybody but the plaintiffs, since the plaintiffs did not bring the case as a “class action” on behalf of all similarly situated same-sex couples, and that the plaintiffs’ failure to join all the county clerks in California as co-defendants meant that only the two county clerks who were sued could be ordered to issue licenses and to record the marriages of the plaintiff couples.

At the heart of the Proponents’ argument is Article III, Section 3.5, of the California Constitution, which provides that no “administrative agency” of the state can refuse to enforce a statute unless it has been declared unconstitutional by an appellate court.  In the memorandum they filed with the Supreme Court in support of their petition, they argue that this provision forbids  “executive officials,” including county clerks, from refusing to enforce such a statute, and then make the leap to assert that under this provision, the 58 county clerks are required “to enforce state law defining marriage as a union between a man and a woman.”  By using the term “state law,” they blur the distinction between the statute, declared unconstitutional in 2008, and the subsequent constitutional amendment, which, of course, is not a statute.  Section 3.5 refers only to statutes.

Their broader argument is derived, in part, from the California Supreme Court’s decision in 2004, Lockyer v. City and County of San Francisco, which put an end to the brief period when the San Francisco County Clerk’s office was issuing marriage licenses to same-sex couples at the direction of Mayor Gavin Newsom.  In that case, the California court said that officials such as the mayor and the county clerk did not have authority to refuse to enforce the existing marriage statute based on their own determination that the law was unconstitutional, and enjoined any further issuance of licenses, finding that the marriages that had been conducted were invalid under state law.  In their petition, the Proponents cite other California court opinions applying Section 3.5 in a variety of situations, although none is exactly like the unusual circumstances of this case.

Here, however, a federal court has ruled that Proposition 8 is facially unconstitutional (that is, that it has no constitutional applications) under the 14th Amendment, and was affirmed by the 9th Circuit Court of Appeals.  The Supreme Court has vacated the 9th Circuit’s ruling, not based on any stated disagreement with its determination of the constitutional issue, but based on a determination that the appeal was not properly before the 9th Circuit because the Proponents did not have standing to appeal Judge Walker’s decision.  Chief Justice Roberts’ opinion is careful to avoid any statement on the merits of the case, consistent with his conclusion that neither the Supreme Court nor the 9th Circuit had authority to hear the appeal.  The Proponents now argue that this means that there is no appellate decision finding Prop 8 unconstitutional, so Section 3.5 forbids the county clerks from failing to enforce Prop 8.  They argue that county clerks are “executive officials” who are subject to the restriction in Section 3.5.

Attorney General Harris promptly filed an opposing memorandum, arguing that the court should not issue a stay or immediate injunctive relief, because allowing marriages to continue while the court resolves these issues does not cause irreparable harm to the Proponents, who are not personally injured in any way, and because Proponents were not likely to succeed on the merits of their claim.  “Article III, section 3.5 has no application where officials are acting under a federal court order,” Harris asserted, arguing that “the issue presented by the petition is controlled by the Supremacy Clause of the United States Constitution.”  She also argued that in earlier stages of this litigation, all the parties, including the Proponents, had acknowledged at one time or another that Judge Walker’s injunction “applies statewide.”  Indeed, in his dissenting opinion in the Supreme Court, Justice Anthony Kennedy referred to it as a “statewide injunction.”

Harris cited a 9th Circuit ruling from 2000 that held that Section 3.5 does not excuse state officials from complying with federal law, and that what Petitioners were asking the court to do was to “modify the scope of the district court’s injunction.”  But, of course, a state court, even the highest court of a state, does not have authority to modify a federal court order.  Harris argued that the Proponents were in the wrong court if they wanted to challenge the scope of Walker’s Order.  They should be asking the federal district court in San Francisco, in the first instance.  The problem for them, of course, is that under the Supreme Court’s ruling in their own case, they do not have standing to bring any action concerning Proposition 8 in federal court!

The Proponents also argued, in response to Harris’s arguments, that the Department of Public Health does not control or supervise the county clerks, and thus that Judge Walker’s Order technically does not apply to them.  This seems contrary to the California Supreme Court’s Lockyer ruling, which held that state officials could order the San Francisco County Clerk to desist from issuing marriage licenses to same-sex couples.  Clearly, county clerks do not have autonomy to decide that a state law is unconstitutional, as per that ruling, as they perform a purely ministerial function of enforcing state law.  As such, argued Harris, they are under the control and supervision of the Department of Health, which is charged by state law with administering the marriage license and recordation system through the county clerks, and which is bound by Walker’s Order.

Evidently, the California Supreme Court was convinced by Harris’s argument in opposition to the request for immediate relief, because it issued a two sentence order on July 15, denying Proponents’ “request for an immediate stay or injunctive relief” while granting applications from some of the ADF attorneys who are not members of the California bar to appear in this case as representatives of the Proponents.  The court provided no explanation for this action.  However, on July 12 the court had signaled that it would take up the Proponents’ arguments after full briefing by the parties, ordering that the state file its opposing papers by July 22, and giving Proponents until August 1 to file a reply.  Thus, the court will consider the Proponents’ request for permanent relief in August.  In the meantime, same-sex couples can continue to get married in California while these legal questions are being sorted out.

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