Gov. Jerry Brown and state Attorney General Kamala Harris urged the California Supreme Court this evening to reject a bid by the supporters of Proposition 8 to halt same-sex marriages in the state.
“After years of litigation, there is now a final determination that Proposition 8 is unconstitutional,” lawyers for Brown and Harris wrote in a brief filed with the high court in San Francisco.
“To revive Proposition 8, as petitioners have asked, by ordering county officials to enforce it would command the violation of gay and lesbian Californians’ federal constitutional rights,” the state officials said.
Brown and Harris said a federal injunction issued by U.S. District Judge Vaughn Walker in 2010 “overrides state law” and said that any challenge to it should pursued in the federal rather than the state court system.
“This court is not the proper forum,” they told the California panel.
The state officials submitted the brief in response to a petition filed earlier today in which Proposition 8 supporters asked the high court to issue an immediate stay requiring county clerks to cease issuing same-sex marriage licenses.
Proposition 8, an initiative approved by California voters in 2008, amended the state Constitution to ban gay marriage.
Walker’s injunction, issued in a civil rights lawsuit filed by two couples, bars state officials from enforcing the measure. The order accompanied his conclusion that the ban violated the federal constitutional rights to equal treatment and due process.
Same-sex marriages resumed in the state on June 28 after a federal appeals court lifted a stay on the injunction, two days after the U.S. Supreme Court dismissed the sponsors’ appeal.
The initiative’s sponsors contend, however, that the injunction applied only to the two couples who sued and that Proposition 8 should remain in effect in all other circumstances.
Andrew Pugno, a lawyer for the sponsors’ campaign committee, Protect Marriage, said today, “The man-woman definition of marriage, as passed by the voters, is still a valid part of our state Constitution.”
Brown and Harris contend the injunction applies statewide, and Brown on June 28 ordered clerks in all 58 counties to resume issuing marriage licenses to gay and lesbian couples.
The Proposition 8 sponsors have until 9 a.m. Monday to file a reply to the state’s brief. The state high court has no deadline for acting on the sponsors’ request for a stay.
The two couples who challenged Proposition 8 – Kris Perry and Sandra Stier of Berkeley and Paul Katami and Jeffrey Zarrillo of Burbank – married on June 28, after the 9th U.S. Circuit Court of Appeals lifted its stay of Walker’s injunction.
In San Francisco alone, more than 600 other marriage licenses have been issued to same-sex couples since then, according to the state’s brief.
The U.S. Supreme Court dismissed the sponsors’ appeal on June 26, saying by a 5-4 vote that the initiative proponents, as a private group, had no standing to appeal Walker’s ruling after Brown and Harris declined to do so.
The U.S. high court also said the 9th Circuit therefore had no jurisdiction over the case, and nullified a decision in which the appeals court had upheld Walker’s ruling.
That action had the effect of leaving Walker’s decision and injunction in place, but with the two sides disputing how broadly they should apply.
Julia Cheever, Bay City News