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Prop 8 backers’ new effort to stop same-sex marriage called ‘baseless’

Supporters of California's Proposition 8 have filed legal papers seeking to have the marriage law upheld in court, but opponents who support gay marriage denounced the tactic as "baseless" and "desperate."

Proposition 8 "is still a valid part of our state constitution," Andrew Pugno, general counsel for ProtectMarriage.com, said Friday after court papers were made public.

California state officials and county clerks do not have the legal authority to issue marriage licenses to gay couples, he said. "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."

San Francisco City Attorney Dennis Herrera quickly denounced the legal filing as "a desperate obstruction tactic."

Their lawsuit "has essentially no chance to succeed," said Mr. Herrera. "The most basic concepts of American law tell us that a state court cannot and will not overrule the federal judiciary."

The legal filing is "utterly baseless," said Theodore B. Olson, one of the lawyers with the American Foundation for Equal Rights, which led the effort in federal court to overturn Proposition 8.

At issue is whether U.S. District Judge Vaughn Walker's 2010 ruling in the foundation's case — brought by four plaintiffs from two of California's 58 counties — can be treated as a statewide mandate.

Proposition 8, passed by voters in November 2008, added the words, "only marriage between a man and a woman is valid or recognized in California" to the state constitution.

The foundation soon filed a lawsuit against Proposition 8 on behalf of a lesbian couple in Alameda County and a gay couple in Los Angeles County.

In 2010, Judge Walker struck down Proposition 8 as unconstitutional, and a three-judge panel of the 9th U.S. Circuit Court of Appeals upheld that ruling.

The U.S. Supreme Court took the case, Hollingsworth v. Perry. But on June 26, the high court said the private group defending Proposition 8 did not have standing to bring the case to the 9th Circuit Court and vacated that ruling.

That left Judge Walker's ruling as the last word — but only for the two couples in two counties, Mr. Pugno said in the legal filing on behalf of Dennis Hollingsworth, Gail Knight, Martin Gutierrez, Mark Jansson and ProtectMarriage.com.

"The district court's ruling does not apply statewide; therefore, county clerks should abide by the state constitution" and not issue marriage licenses to same-sex couples, said Austin R. Nimocks, senior counsel for Alliance Defending Freedom, which is supporting Mr. Pugno and his allies.

Moreover, they argued, state officials cannot declare state law unenforceable "unless an appellate court has first made that determination."

Since the Supreme Court vacated the ruling of the 9th Circuit Court, they said, there is "no appellate decision holding that Proposition 8 is unconstitutional."

"The more than 7 million Californians who approved Proposition 8 have a right to see the rule of law — and the constitutional initiatives that the people enact — respected," Mr. Nimocks said.

The lawsuit names 58 county clerks, their legal counsels and numerous state officials as respondents or real parties in interest.

Spokesmen in some county clerks' offices referred calls to California Attorney General Kamala D. Harris. A spokesman for her office said they did not immediately have a response to the complaint.

But Ms. Harris and California State Registrar Tony Agurto — who are both named in the complaint — said that when the 9th Circuit Court complied with the U.S. Supreme Court ruling June 28, it meant that same-sex marriage became valid in all 58 California counties.

Ms. Harris said she would "take legal action" against any clerk who refused to issue marriage licenses to a gay couple. Alameda County Counsel Donna Ziegler said Friday their county clerks were "currently issuing" marriage licenses to same-sex couples "and, at the moment, we do not plan to stop doing that."

Given the intense interest in the gay-marriage issue, Ms. Ziegler added, "I would not be surprised" if the California Supreme Court addressed the ProtectMarriage.com legal petition "sooner, rather than later."

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About the Author
Cheryl Wetzstein

Cheryl Wetzstein

Cheryl Wetzstein covers family and social issues as a national reporter for The Washington Times. She has been a reporter for three decades, working in New York City and Washington, D.C. Since joining The Washington Times in 1985, she has been a features writer, environmental and consumer affairs reporter, and assistant business editor.

Beginning in 1994, Mrs. Wetzstein worked exclusively ...

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