While California county clerks process marriage applications for gay couples Sunday, attorneys for supporters of Proposition 8 are waiting for a response to the emergency appeal they filed Saturday evening with the U.S. Supreme Court, saying the rule of law has not been followed.
The legal team with Protectmarriage.com filed its application with Associate Justice Anthony M. Kennedy, who has jurisdiction over such motions for the 9th U.S. Circuit Court of Appeals.
The emergency stay asks the high court to vacate an order issued Friday by the appellate court that permitted gay marriages to commence.
The stay was supposed to “remain in place until final disposition by the Supreme Court,” said Austin R. Nimocks of Alliance Defending Freedom (ADF). But the appeals court “acted contrary to its own order, without explanation,” when it gave the OK for gay marriages on Friday.
“The integrity of our judicial system depends in no small part on the ability of litigants and the members of the public to rely on a judge’s word,” Mr. Nimocks added.
On Wednesday, Chief Justice John G. Roberts Jr. released the high court’s 5-4 ruling in Hollingsworth v. Perry, which vacated the decision of the 9th U.S. Circuit Court. The reason for this was that the proponents of Proposition 8 did not have standing to appeal a decision in federal court, the majority opinion said.
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Justice Kennedy wrote a dissenting opinion, arguing that if the proponents of a voter initiative — that circumvents state officials — cannot appeal on behalf of their law when state officials refuse to defend it, it undermines the initiative process.
In their ruling Wednesday, the U.S. Supreme Court invited the losing side to petition for a rehearing on the matter in 25 days.
Proposition 8 proponents believed they had 25 days to make their decisions on whether to seek a rehearing and/or take other legal steps to save the law.
However, in a press conference, California Attorney General Kamala Harris said she had advised the 9th Circuit Court that it did not have to wait 25 days to permit gay marriages to go forward. The appellate court agreed and gave the green light for marriages late Friday night.
Shortly thereafter, in San Francisco, Ms. Harris presided over the marriage of Kristin Perry and Sandy Stier, the lesbian plaintiffs in the Proposition 8 case. In Los Angeles, Mayor Antonio Villaraigosa did the same for the male plaintiffs, Paul Katami and Jeff Zarrillo.
On Saturday, clerks’ offices opened to accommodate long lines of gay and lesbian couples seeking marriage licenses; many of those offices will be open Sunday, too.
In 2008, gay marriage was legal for almost 5 months in California, but this ended in November 2008, when voters passed Proposition 8 with 52 percent support. Prop 8 said that only marriages of one man and one woman were valid or recognized in California.
The two same-sex couples sued to overturn the law, and in 2010 U.S. District Judge Vaughn Walker overturned Proposition 8 as unconstitutional. On appeal, a three-judge panel from the 9th U.S. Circuit Court of Appeals agreed with Judge Walker and struck down the law as well.
After the U.S. Supreme Court ruling, lawyers with ADF and other conservative legal defense organizations said they still had legal options — especially since the Supreme Court didn’t strike down the law as unconstitutional.
They said their options included having county clerks who support Proposition 8 file a challenge, or filing a challenge that said that until there is a appellate court ruling overturning Proposition 8, the law is still in effect. According to the California Constitution, they said, a lone federal judge cannot overturn a California state law.
In Ms. Harris’ press conference, she specifically refuted that idea, saying that once the appeals court lifted its stay, “the remaining law of the land for California are the words of Judge Vaughn Walker, who said that under equal protection and due process, Prop 8 is unconstitutional, and therefore every one of the 58 counties will be enjoined from enforcing this unconstitutional law.”
“Marriages are on,” Ms. Harris said. “The wedding bells will ring.”
Andy Pugno, general counsel for Protectmarriage.com, which promoted Proposition 8, said Saturday that the public’s confidence in the legitimacy of the U.S. legal system is undermined by “lawlessness” in courts.
“We hope the Supreme Court will step in and restore some order here,” Mr. Pugno said.
On Friday, however, David Madden, spokesman for the 9th Circuit Court, told The Associated Press that the panel’s decision to act sooner was “unusual, but not unprecedented.”