Moments ago, we filed a new petition in the California Supreme Court against all of California’s 58 county clerks, and state officials, seeking to restore the enforcement of Proposition 8, the state’s constitutional amendment limiting marriage to a man and a woman.
The undeniable fact is, the man-woman definition of marriage, as passed by a majority 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.
The action we filed today contends that at least 56 of the 58 county clerks must continue to follow Proposition 8 because they were not parties to the recent federal lawsuit against Prop 8, and that the state’s governor and attorney general have no legal authority to order local county clerks to disregard the state constitution.
Our petition also reminds the justices that our opponents, the attorneys for the plaintiffs who challenged Prop 8, have repeatedly admitted that the 56 county clerks not involved in their case “are not directly bound by the injunction” issued by a single San Francisco judge against Prop 8. In fact, “super-lawyer” David Boies told the courts that “the scope of the injunction is quite limited”, and at least the 56 county clerks would remain free to “refuse a marriage license to a same-sex couple…without violating the injunction.”
Following the U.S. Supreme Court’s determination that we, as Prop 8’s official proponents, lacked standing to defend the measure in federal court, the Ninth Circuit Court of Appeal’s ruling against Prop 8 was vacated, leaving no legal precedent—in either state or federal courts—declaring Prop 8 unconstitutional statewide. California’s constitution requires public officials to enforce any voter-passed initiative until an appellate court declares it to be unconstitutional statewide.
In my opinion, today’s case is remarkably similar to former San Francisco Mayor Gavin Newsom’s unsuccessful attempt to order the county clerk to disregard the man-woman legal definition of marriage in 2004. The Supreme Court ruled unanimously that Mayor Newsom had no authority to instruct the county clerk to defy state law, and today we contend that the governor and attorney general don’t have that authority either.
That is because, under California Law, county clerks are independent local officials with the exclusive responsibility and authority to issue marriage licenses. The governor and attorney general are not the county clerks’ “bosses.”
As you can see, 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.
And, unlike in federal court, we unquestionably have legal standing to bring today’s request to the State Supreme Court. In 2011, the California Supreme Court unanimously designated us, as the Official Proponents, to defend Prop 8 in lieu of government officials who refused to do so.
And that is exactly what we are doing today! Please join us by making a tax-deductible and confidential donation of whatever you can afford today to support our case before California’s Supreme Court.
Very truly yours,
Prop 8 General Counsel
P.S. This fight is not over! The people haven’t voted to repeal Prop 8, and no court with authority to establish binding legal precedent has ruled against it. Only the failure of government officials to enforce the law is standing in the way of Proposition 8.