SAN FRANCISCO — A San Diego County government official in charge of issuing marriage licenses asked the state Supreme Court on Friday to stop gay marriages.
Ernest Dronenburg Jr. urged the state high court to immediately halt same-sex weddings while it considers his legal arguments that gay marriages remain illegal in California despite a U.S. Supreme Court‘s decision widely regarded as authorizing gay weddings.
Dronenburg asked for the halt Friday while the state Supreme Court considers his petition, arguing that the U.S. Supreme Court decision applies only to the two couples named in the original federal lawsuit, and to the clerks in Alameda and Los Angeles counties where the couples applied for marriage licenses.
Dronenburg also argues that county clerks aren’t bound by orders from the governor, the state attorney general and other state officials to marry gay couples.
“County clerks carry out their duties, including the issuances of marriage licenses, without supervision or control of the governor or attorney general,” Dronenburg wrote in his petition. “Indeed, no statute requires county clerks to report to the governor or attorney general.”
The state Supreme Court on Monday refused a similar request to immediately stop gay weddings made by backers of California’s Proposition 8, which banned same-sex marriage in the state when passed by voters in 2008.
The supporters have made the same legal arguments as Dronenburg.
“The filing offers no new arguments that could deny same-sex couples their constitutionally protected civil rights,” state Attorney General Kamala Harris said. “The federal injunction is still in effect, and it requires all 58 counties to perform same-sex marriages. No exceptions.”
Harris filed written arguments with the state Supreme Court last week urging it to ignore the petitions and take no action to impede same-sex marriages.
Supporters of Prop. 8 applauded Dronenburg’s move.
“The attorney general’s obsession with redefining marriage has put the integrity of the people’s power of initiative, and the rule of law itself, in great jeopardy,” said Andrew Pugno, general counsel for ProtectMarriage.com. “We hope other county clerks will bravely step forward, as well.”
The U.S. Supreme Court cleared the way for gay marriages to resume in the nation’s most populous state on June 28 by dismissing the backers’ appeal of a lower court ruling that found the ban unconstitutional. The high court decided the backers lacked authority to defend Proposition 8 after the governor and attorney general refused to do so.
As a result, U.S. District Judge Vaughn Walker‘s 2010 ruling finding Proposition 8 unconstitutional became the definitive ruling. Walker found the same-sex marriage ban violated constitutional equal protection guarantees.
The California Supreme Court still plans to separately consider whether the lower court ruling that invalidated the ban and a companion mandate prohibiting the state from enforcing it applied statewide or only in Los Angeles and Alameda counties.
Lawyers for Proposition 8 sponsors also have argued that because the U.S. Supreme Court did not rule directly on Proposition 8’s constitutionality, state officials are bound by state law to abide by the measure.
The state high court has asked for additional written arguments on those issues by Aug. 1.
Edwin Chemerinsky, the dean of the University of California, Irvine’s law school, said it appeared unlikely that the state Supreme Court will stop gay marriages because the county clerk and Prop 8 supporters are raising federal court issues.
“Judge Walker’s order invalidates Prop 8 for the entire state,” Chemerinsky said. “If there is to be a challenge to Judge Walker’s ruling, it must be in federal district court, not state court.”
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