Prop 8 update: Gay marriage opponents ask California Supreme Court to deny licenses (PDF)

A couple gets married in West Hollywood, Calif. on July 1st, 2013.
A couple gets married in West Hollywood, Calif. on July 1st, 2013.
Mae Ryan/KPCC

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UPDATE 5:19 p.m.: The court this afternoon gave Gov. Jerry Brown until 8 p.m. Friday to file the state's opposition to the request that county clerks temporarily stop issuing same-sex marriage licenses.

The Prop 8 supporters would have until 9 a.m. Monday to respond, according to an order issued by Chief Justice Tani Cantil-Sakauye.

EARLIER: The group that sponsored the 2008 ballot measure banning gay marriage in the state said it filed a petition on Friday asking the California Supreme Court to order all 58 county clerks throughout California to stop issuing marriage licenses to same-sex couples.

The group Protect Marriage says a federal court order to stop enforcing Prop 8’s ban on same sex marriage covered only Attorney General Kamala Harris and others explicitly named in the case and should therefore not be binding on county clerks.

The action comes in the wake of the U.S. Supreme Court's ruling last month that dismissed an appeal of a lower court ruling that overturned Prop 8; the court found that the appellants in the case — which included Protect Marriage — did not have standing.

RELATEDProp 8 timeline: A look back at same-sex marriage legislation in California (Photos)

Subsequently, the 9th Circuit Court of Appeals lifted its stay on overturning Prop 8, in effect setting the stage for same-sex marriages to resume, and California Attorney General Kamala Harris ordered the state's county clerks to begin issuing marriage licenses immediately.

But Jim Campbell, one of the attorneys representing the backers of Prop 8, says Harris overstepped her bounds.

"The county clerks are not under the control or supervision of state officials," Campbell said, "and as a result county clerks throughout the state are not bound by the district court’s injunction."

Likely to fail?

USC Law School professor Daria Roithmayr said the Prop 8 supporters are likely to fail in this latest court effort to bar same-sex marriages. That’s because federal court decisions are binding on state officials, even if the county clerks were not formally named.

"A state can’t just decide that it’s not going to obey a federal court until the decision is decided at a higher level," she said. "That just cannot be allowed."

Licensing of same sex couples to tie the knot was halted during the long court battle over Prop 8, a measure voters passed in 2008 that defined marriage as a union between a man and a woman.

David B. Cruz, another USC law professor, said Prop 8’s supporters should have gone to the federal court with the issue, not the state high court. Still, he said these sorts of challenges are likely to continue.

"As long as Prop 8 is not officially repealed, and we don’t have a definitive U.S. Supreme Court ruling on its unconstitutionality, there is always going to be legal uncertainty," he said.

For now, the Los Angeles County Clerk’s office is making no change in their policy, which is to issue marriage licenses to all couples who apply, regardless of gender.

Protect Marriage Petition

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