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Hollingsworth v. Perry (formerly Perry v. Schwarzenegger):
California lawsuit challenging constitutionality of Prop. 8

2013-JUN/JUL: ProtectMarriage launches two more
appeals to terminate same-sex marriage in California.
One was rejected. The other is being processed.

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Continued from a previous essay

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In this web site, "SSM" is an acronym for "same-sex marriage."

"LGBT" is an acronym for "Lesbians, Gays, Bisexuals, Transgender persons and Transsexuals."

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2013-JUN-30: ProtectMarriage tries an emergency appeal, and loses:

As noted previously, the 9th U.S. Circuit Court of Appeals lifted its ban on SSM only two days after the U.S. Supreme Court issued its ruling in Hollingsworth v. Perry. This caused the government to immediately start issuing marriage licenses to same-sex couples and to allow them to marry. ProjectMarriage.com. and and other supporters of Prop. 8 objected to the 9th U.S. Court of Appeals' having lifted its ban only two days after the U.S. Supreme Court issued its ruling. The Court of Appeals had previously indicated it would wait at least 25 days before lifting its ban.

ProjectMarriage.com's lead lawyer, Andy Pugno, issued a statement saying:

"People on both sides of this debate should at least agree that the courts must follow their own rules. This kind of lawlessness just further weakens the public’s confidence in the legitimacy of our legal system." 1

ProtectMarriage.com issued a statement saying that the Court of Appeals should have waited longer. They said that the court had originally promised to wait until "final disposition" before lifting its injunction against SSMs. The statement said:

"Under Supreme Court procedural rules, 'final disposition' comes when the Supreme Court issues a 'mandate' to the Ninth Circuit, at least 25 days after announcing its opinion in the case. The 25-day waiting period is provided to allow parties such as Prop 8’s proponents to petition the Supreme Court for a re-hearing of the case." 2

The ProtectMarriage.com coalition announced on JUN-29 that they had filed a last-ditch, emergency petition with the U.S. Supreme Court to have the ban reinstated. 3

Theodore J. Joutrous Jr., one of the lawyers who challenged Proposition 8 on behalf of two gay and lesbian couples said that he received notice from the U.S. Supreme Court that Justice Anthony M. Kennedy who oversees California and the other states in the 9th U.S. Court of Appeals had rejected ProtectMarriage's request. 4

It appeared at the time that ProtectMarriage had no other options that might stop the deluge of loving, committed same-sex couples from obtaining marriage licenses and getting married.

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2013-JUN-30: A busy weekend at the county clerk's office in San Francisco:

One hundred volunteers -- mostly current and former city and county workers who wanted to be part of this historic occasion -- worked in San Francisco's county clerk's office, the only location in the state that performed same-sex marriages over the weekend of JUN-29/30.

One of the volunteers, Gabriel Breitzke-Rivera, 66, said:

"Do you feel the joy? You can feel the electricity in the air. I wouldn't miss this. ... [My marriage] gave me a status I’m very proud of, and I don’t use the word 'pride' flippantly. It took everything up a notch. The reality, the enormity, the beauty, the justice of it. It all came up at that moment.""

He had married his husband in 2008 during the brief six month window when same-sex marriages were last available. 5

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2013-JUL-12: Lawyers for ProtectMarriage make a second appeal to terminate SSMs:

Austin R. Nimocks, the senior counsel for Alliance Defending Freedom (ADF), is attempting to destroy the freedom of same-sex couples to marry in California. On behalf of ProtectMarriage, ADF has filed an appeal with the California Supreme Court to terminate future SSMs, and perhaps also terminate same-sex marriages made during and after 2013-JUN-30.

They argue that the U.S. Supreme Court has ruled that the U.S. 9th Circuit Court of Appeals' decision is invalid because Project Marriage, who had appealed the case, did not have standing. That left only the District Court ruling as valid. ProtectMarriage is taking the position that the District Court's ruling does not apply state-wide. They are arguing that Judge Walker of the District Court acted beyond his authority when his ruling required government officials to issue marriage licenses to same-sex couples and record their marriages state-wide. They take the position that he only should have required officials to marry the two plaintiff couples. Thus they conclude that the constitutional ban on SSM throughout California is still in place.

Nimocks explained that:

"The U.S. Supreme Court did not rule on the constitutionality of Proposition 8, and the district court’s injunction does not apply statewide; therefore, county clerks should abide by the state constitution. Public officials should enforce the [Proposition 8] marriage amendment because they are not bound by the district court’s injunction.”

Andrew Pugno, general counsel for ProtectMarriage said:

“The man-woman definition of marriage, as passed by the voters, is still a valid part of our state Constitution. Yet, county clerks statewide are lawlessly defying that law by issuing gender-neutral marriage licenses. We are asking California’s Supreme Court to restore the rule of law and the public’s confidence in the integrity of the initiative process. ..."

"This has become more than just a fight over marriage. The authority of local government officials, and the future of the initiative process itself, is put at grave risk if state officials are allowed to nullify a proposition by executive order, backed by no binding legal precedent. Now it is up to California’s highest court to breathe life back into the people’s power of initiative." 6

He also wrote:

"The urgent need to prevent state officials’ attempt to overrun a constitutional initiative ... calls for this Court to intervene and breathe enforcement life into Proposition 8. ... Should this Court abstain from granting the relief requested, the end result will be to allow one federal district judge – empowered by state officials who openly advocated for and ceded to Proposition 8’s demise – to nullify a constitutional initiative approved by more than seven million voters."


Apparently, Andrew Pugno did not mention:

  • The vote that passed Proposition 8 was a very narrow one. 52% of the voters approved Prop. 8 while 48% were opposed.

  • If the vote were repeated today, polls show that it would be defeated overwhelmingly.

  • During 2008-MAY, the Supreme Court of California ruled that same-sex couples can marry in the state.

  • Between that ruling and the passage of Prop. 8, some 36,000 gays, lesbians and bisexuals did marry persons of the same-sex.

Jim Campbell, another attorney supporting ProtectMarriage, clarified the issue. He argued that the federal court order to stop enforcing Prop. 8's ban on SSM only covered the Attorney General and others who were specifically identified in the order. He said:

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

That is a fascinating argument: that county clerks are under the control of their county government and not directly under the control of the Governor or Attorney General.

ProtectMarriage further claims that the original lawsuit was not a class-action case, and that therefore the District Court's 2010 ruling only applied to the two plaintiff couples, and not to all same-sex couples in California who wish to marry.

Southern California Public Radio KPCC reported:

"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'. ..."

"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 [the Constitutional Amendment] 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." 7


The text of ProtectMarriage's appeal to the California Supreme Court is available online. 7

Now would be a great time for the Attorney General and/or the Governor of California -- individuals who the U.S. Supreme Court would presumably accept have standing -- to appeal the original District Court's ruling to the 9th Circuit Court of Appeals, asking that the ruling apply to the entire state. That would throw the entire process into complete chaos.

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This topic continues in the next essay

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. "Supreme Court shoots down last-ditch effort to stop same sex marriage in California," Agence France Presse, 2013-JUN-30, at: http://www.rawstory.com/
  2. "Same-sex marriage opponents file Supreme Court appeal," TheBorneoPost, 2013-JUL-01, at: http://www.theborneopost.com/
  3. "Same-sex marriage opponents file US Supreme Court appeal," Global Times, 2013-JUL-01, at: http://www.globaltimes.cn/
  4. "ProtectMarriage's petition rejected," UPI, 2013-JUN-30, at: http://www.istockanalyst.com/
  5. Joseph Serna, "Volunteers officiate at San Francisco's gay marriages this weekend," L.A. Now, Los Angeles Times, 2013-JUN-29, at: http://www.latimes.com/
  6. Warren Richey, "Gay marriage: Opponents ask California Supreme Court to enforce ban, The Christian Science Monitor, 2013-JUL-12, at: http://www.csmonitor.com/
  7. Sharon McNary, "Prop 8 update: Gay marriage opponents ask California Supreme Court to deny licenses," KPCC, 2013-JUL-12, at: http://www.scpr.org/

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Home page > "Hot" topics > Homosexuality > Couples > California > Prop 8 > here

Copyright © 2013 by Ontario Consultants on Religious Tolerance
Original posting: 2013-JUN-26
Latest update: 2013-JUL-24
Author: B.A. Robinson

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