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Opponents want Calif. court to stop gay weddings

Posted: July 12, 2013 2:06 p.m.
Updated: July 12, 2013 2:06 p.m.
 

SAN FRANCISCO (AP) — Opponents of same-sex marriage on Friday demanded that the California Supreme Court immediately halt same-sex marriages recently resumed in the nation's largest state after a 9-year legal battle.

The group that sponsored Proposition 8 and its ban on same-sex marriages in 2008 launched a two-pronged legal attack Friday in what legal experts described as a last-ditch argument with little chance of succeeding.

ProtectMarriage argued Friday that state officials' incorrectly interpreted a June 24 U.S. Supreme Court ruling tossing out the gay marriage ban on a legal technicality as legalizing same-sex weddings in the state. The U.S. Supreme Court ruled that ProtectMarriage had no "standing" to pursue an appeal of the 9th U.S. Circuit Court of Appeals decision striking down Proposition 8 to the high court even though California Gov. Jerry Brown and state Attorney General Kamala Harris declined to defend the ballot measure passed by 52 percent to 48 percent.

On Friday, ProtectMarriage argued in its petition to the state Supreme Court that Proposition 8 remains California law because the U.S. Supreme Court didn't rule directly on the constitutionality of same-sex marriages in case widely called the "Perry" case.

"The Ninth Circuit's decision in Perry has been vacated," The petition stated, "hence there is no appellate decision holding that Proposition 8 is unconstitutional."

Therefore, the petition concluded, the Proposition 8 ban on same-sex marriages is still in force.

The petition to the state Supreme Court also argued that the original lawsuit filed in San Francisco named only the county clerks of Los Angeles and Alameda counties. They argued the ruling doesn't reach the 56 other county clerks, who must continue to abide by the marriage ban passed by Proposition 8.

The petition argues that county clerks are independent state officials and that the state registrar — under orders from Gov. Brown and the attorney general — had no authority to order them on June 26 to begin issuing same-sex marriage licenses. An attorney general spokeswoman didn't immediately respond to a request for comment.

"The Legislature has not imbued the State Registrar with supervisory authority or control over county clerks issuing marriage licenses," the petition stated.

Ted Olson, one of several high-profile attorneys who represented same-sex couples in the courts, called the petition "utterly baseless."

Olson said that any county clerk refusing to follow the state's orders to issue same-sex marriage licenses faces contempt of court charges and federal civil rights lawsuits.

"This latest filing is utterly baseless," Olson said. "Proponents' latest effort to stop loving couples from marrying in California is a desperate and frivolous act."

U.C. Davis law professor Vikram Amar predicted the state Supreme Court would reject the petition's initial argument about the U.S. high court failing to reach the legal merits of same-sex marriage as the exclusive province of federal courts. If that happens, the state Supreme Court won't take up the second part of the argument about the case being limited to just two counties, Amar said.

Amar further said that the U.S. Supreme Court has already ruled that ProtectMarriage is barred from defending Proposition 8 in federal court, so gay marriage opponents appear to be out of legal luck in California.

"My guess is that the California Supreme Court will not be eager to wade into this because so much of this turns on federal questions," Amar said. "And the Prop 8 proponents are precluded from arguing the case in federal court by the Supreme Court ruling."

Copyright 2013 The Associated Press.

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