The San Diego County clerk, saying he is “caught in the crossfire of a legal struggle over the definition of marriage,” asked the California Supreme Court today for an immediate stay of a state official’s order requiring him to issue same-sex marriage licenses.
County Clerk Ernest Dronenburg contends in a petition filed with the court in San Francisco that he is not bound by a federal court injunction that blocked enforcement of Proposition 8, a 2008 voter initiative that banned gay marriage.
The petition is the second to be filed with the state high court within a week to seek a halt to same-sex weddings, which resumed in California on June 28.
The earlier petition was filed on July 12 by the sponsors of Proposition 8 and their committee, Protect Marriage. The two lawsuits make similar claims, arguing that the ban should remain in effect except in the case of the two couples who challenged the measure in federal court and have now married.
On Monday, the state Supreme Court denied the Proposition 8 sponsors’ request for an immediate stay, but it is still considering their request for a hearing and long-term halt to the weddings.
Dronenburg’s petition argues that his plea for a stay is different because he is directly affected by state Registrar Tony Agurto’s June 28 order to the 58 county clerks to license gay marriages.
The San Diego County clerk said he is in a “legal limbo” because he believes the licenses should not be issued, but state Attorney General Kamala Harris has threatened to take action against clerks who refuse to allow the nuptials.
“Navigating this landmine of uncertainty on a daily basis is an ongoing and ever-present injury” that justifies an immediate stay, Dronenburg argued in the lawsuit.
The court this afternoon ordered the state officials named in the petition—Harris, Agurto, Gov. Jerry Brown and Public Health Director Ron Chapman—to file opposition to the bid for a stay by 9 a.m. Monday.
Dronenburg will then have until 9 a.m. Tuesday to file a reply.
Harris said in a statement, “The filing offers no new arguments that could deny same-sex couples their constitutionally protected civil rights.
“The federal injunction is still in effect, and it requires all 58 counties to perform same-sex marriages. No exceptions,” Harris said.
In a brief filed last week to oppose the Proposition 8 sponsors’ request for a stay, Harris and the other state officials argued that the injunction issued by U.S. District Judge Vaughn Walker in 2010 overrides state law and that it applies to all county clerks.
They said any further litigation should be pursued in the federal rather than state court system.
In addition to seeking an immediate stay, Dronenburg asked the court to combine his lawsuit with the Protect Marriage petition when it considers their similar requests for a hearing and a long-term finding that Proposition 8 remains in effect.
The court today gave the state officials until July 29 to respond to that part of the petition and Dronenburg until Aug. 8 to reply.
Same-sex marriages resumed in California on June 28, after the 9th U.S. Circuit Court of Appeals lifted a stay of Walker’s injunction.
That action came two days after the U.S. Supreme Court dismissed the initiative sponsors’ appeal of a 9th Circuit decision striking down the measure. The court said the sponsors had no standing to appeal after Brown and Harris declined to do so.
The Supreme Court nullified the 9th Circuit decision, and thereby left in place Walker’s trial-court-level injunction and his conclusion that Proposition 8 violates the federal constitutional rights of equal treatment and due process.
The injunction bars the governor, attorney general, registrar and public health director and “all persons under the control or supervision” of those officials from enforcing Proposition 8.
The state executives say that includes county clerks, while Dronenburg and Protect Marriage contend it does not.
Dronenburg told the state high court justices in his petition that he and other clerks need “definitive guidance from this court on this critical question of state law.”
Same-sex marriages were previously legal in California for several months in 2008 before voters approved Proposition 8 in November of that year as a state constitutional amendment providing that “only marriage between a man and a woman is valid or recognized in California.”
Protect Marriage General Counsel Andrew Pugno issued a statement saying, “We applaud San Diego’s county clerk for courageously standing up against the attorney general’s attempt to bully local officials into ignoring our state Constitution.
“We hope other county clerks will bravely step forward as well,” Pugno said.
Julia Cheever, Bay City News