A lawsuit that claims that California's Proposition 8, which defines marriage as between a man and a woman, is still in effect will go forward — but county clerks can continue to issue marriage licenses to gay couples, the California Supreme Court said Monday.
The order, signed by Chief Justice Tani Cantil-Sakauye, did not give the court's reasoning for not granting a stay on the licenses while letting the case proceed.
The decision was the latest disappointment for opponents of gay marriage.
"Although we would have preferred for the California Supreme Court to issue a stay so that the states' marriage amendment would be respected sooner rather than later, the proponents of Proposition 8 will continue to urge the court to uphold the rule of law," said Austin Nimocks, senior counsel at Alliance Defending Freedom, an Arizona-based conservative Christian group.
Gay marriage supporters said the legal effort was doomed.
"Our opponents have failed in a desperate attempt to deny happiness and protections to lesbian and gay couples and their children and no amount of legal wrangling is going to undo that joy," said Chad Griffin, president of the Human Rights Campaign.
The U.S. Supreme Court on June 26 said that Dennis Hollingsworth and others who promoted California's Proposition 8 could not defend it in federal court. The high court ordered the 9th U.S. Circuit Court of Appeals to vacate its ruling in the case, without ruling on the law's constitutionality.
Soon after the Supreme Court issued its ruling, California state officials, led by state Attorney General Kamala Harris, said that once the 9th Circuit Court vacated its ruling, gay marriages would go into effect. Ms. Harris personally officiated at the marriage of one of the gay plaintiff couples on June 28.
The Proposition 8 proponents have been trying to put the brakes on gay marriage, saying that since the Supreme Court did not strike down Proposition 8 as unconstitutional, they should have had time to defend it again. In their July 12 lawsuit with the California Supreme Court, they argued that Proposition 8 remains the law in California because a single federal judge's ruling in a lawsuit filed by two couples from two of California's 58 counties cannot change the law for the entire state.
Moreover, a state law cannot be deemed unenforceable "unless an appellate court has first made that determination," said Andrew Pugno, general counsel for Protectmarriage.com. Since the 9th Circuit Court ruling was vacated, there is no such determination at this time, he said.
Their case is "a desperate and frivolous act," 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.
On Monday, AFER said they and their allies' efforts would now turn to the 37 states that don't have the freedom to marry.
In Arkansas last week, 11 same-sex couples filed a lawsuit against that state's voter-passed 2004 ban on gay marriage. In Pennsylvania, same-sex couples recently filed to overturn that state's marriage law. Pennsylvania Attorney General Kathleen Kane, like California's Ms. Harris, said she would not defend the law because she didn't believe it was constitutional.
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