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Hollingsworth v. Perry (formerly Perry v. Schwarzenegger):
California lawsuit challenging constitutionality of Prop. 8
which terminated same-sex marriages (SSMs)

2013-JUN/JUL: ProtectMarriage's second
appeal to terminate SSMs in California proceeds.
San Diego County Clerk's unsuccessful appeal.

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Continued from a previous essay

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

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

2013-JUL-12: California Supreme Court orders Governor and ProjectMarriage to respond quickly:

On the afternoon of JUL-12, Chief Justice Tani Cantil-Sakauye of the California Supreme Court asked Governor Jerry Brown to file the state's response to ProtectMarriage's appeal by 8:00 PM local time that evening. Protect Marriage has until Monday JUL-15 at 9 AM to respond. This is blindingly fast speed when compared to the reaction times of most courts.

Fox News reported on JUL-24 that the Court:

"... asked for additional written arguments by AUG-01. So far, clerks in 24 counties have submitted briefs arguing that it makes sense for their actions with regard to issuing marriage licenses to be guided by state officials so marriage laws are the same statewide." ₈

Otherwise, the right for a couple to marry in their county would vary throughout the state.

Webmaster's note: It would seem that ProjectMarriage has so much discomfort towards the concept of same-sex marriage that they are willing to invest a great deal of time and money to pursue this appeal. However, even if it is totally successful -- it will only inconvenience loving, committed same-sex couples. It will prevent none of them from marrying. After all, if the court agrees that SSMs are only to be available in Los Angeles and Alameda Counties, the only effect would be that couples would have to travel across part of the state in order to pick up their marriage licenses. This is unlikely to reduce the number of such marriages. The only likely response to their appeal -- if it is successful -- is that a lot of people will develop animus towards ProjectMarriage and any other group trying to exclude same-sex couples from marriage.

2013-JUL-12: Governor and Attorney General ask that appeal be rejected:

On the evening of JUL-12, Gov. Jerry Brown and state Attorney General Kamala Harris asked the California Supreme Court to reject ProtectMarriage's appeal.

The officials' lawyers met the court's Friday deadline. They sent a brief to the Court saying:

"After years of litigation, there is now a final determination that Proposition 8 is unconstitutional. ...To revive Proposition 8, as petitioners have asked, by ordering county officials to enforce it would command the violation of gay and lesbian Californians’ federal constitutional rights." ₁

The brief also said that the District Court's ruling in 2010:

"... overrides state law. ... This court is not the proper forum." ₁

The government brief said that any challenge should be pursued to the federal U.S, 9th Circuit Court of Appeals. Even if that is true, the U.S. Supreme Court has already decided that ProtectMarriage lacks standing to make such an appeal. The Governor and Attorney General have no interest in initiating such an appeal. Thus, the appeal to the California Supreme Court may be ProtectMarriage's last chance to prevent marriage in the state. If this appeal fails, they might have to bite the bullet and do something that they hate: live in a state in which all loving committed couples -- both same-sex and opposite-sex -- can marry, have their relationship and commitment recognized, and receive access to over 1,000 benefits and protections for themselves and their children.

There are two obvious concerns with the government brief:

• More than gay and lesbian rights are at stake. As usual, the lawyers ignored of persons with a bisexual sexual orientation who form part of some loving, committed same-sex relationships. Some same-sex couples seeking marriage are composed of a gay or lesbian and a bisexual; others are composed of two bisexuals.
  
  
• While it is obvious to many people that the 5th and 14th Amendment to the U.S. Constitution guarantee same-sex couples marriage equality, such couples will not actually have that right recognized across the entire country until:
  • The U.S. Supreme Court issues a ruling stating that they have it that right, as they did in 1967 with interracial marriage, or
    
    
  • All 50 states have legalized SSM. This option could takea decade before the majority of the public in Mississippi and similar states in the deep South favored SSM.

The California Supreme Court is not expected to issue its ruling in the case until 2013-AUG if not later. ₉

2013-JUL-19: CA County Clerks hold annual conference:

Same-sex licenses and marriages are definitely on the conference agenda. Cathy Darling Allen who is both the Shasta County Clerk and president of the California Association of Clerks and Election Officials, said:

"What counties have been told is that if they’re not going to perform same-sex marriages, then they should not be performing any."

Allen said that several counties have stopped performing marriages of both same-sex and opposite-sex couples in order to avoid legal difficulties.

A small group outside the conference meeting held signs urging county clerks to defy the U.S. Supreme Court and the Governor of California. Vic Cho, a member of "Christians Against Child Abuse" said:

"Our message is for clerks not to be intimidated and to stand up and resist this judicial tyranny imposed on them." ₇

2013-JUL-19: County Clerk requested that same-sex marriages be halted in California:

San Diego County Clerk, Ernest J. Dronenburg Jr. (R), noted that the U.S. Supreme Court's decision of JUN-26 had vacated the earlier decision on Prop. 8 by the 9th U.S. Circuit Court of Appeals and left the decision by Judge Walker of the District Court intact. But he believes that Judge Walker's decision is valid only for Alameda and Los Angeles counties where the two plaintiff couples lived. That is, it did not apply to San Diego County where his office provides marriage licenses, and is also not valid for the other 55 counties in California. He petitioned the California Supreme Court to order Governor Jerry Brown, Attorney General Kamala Harris, and other senior state officials to halt same-sex marriages across the entire state. He also asked the court to clarify whether county clerks like himself -- who are elected by local voters -- are independent of state officials or governed by them.

In his petition to the court, he wrote, in part:

"Petitioner has been placed in an unsustainable position because, among other things, he has been threatened with legal action by the attorney general for exercising his public duties consistent with state law defining marriage as the union between one man and one woman."

He said:

"I asked the stay because basically I don't want to hurt people. The last case in San Francisco, the Supreme Court reversed 4,000 marriages. That was cruel, that was hurtful."

The American Family Association, which is listed by the Southern Poverty Law Center's (SPLC) as an active anti-gay hate organization, _2,3 compared Dronenburg's action to that of Rosa Parks. She was an African-American woman whom the U.S. Congress called "the first lady of civil rights" and "the mother of the freedom movement." After an exhausting day at the office, she had refused to give up her seat to a white passenger on a bus in Montgomery AL. This action triggered a city-wide boycott and contributed to an effort to end segregation in public facilities across the U.S. There is one enormous difference between the two: Rosa Parks was working for equality whereas Ernest Dronenburg is working to preserve inequality.

In spite of his opinion, his office continues to dispense marriage licenses to same-sex couples.

On JUL-23, supporters of same-sex marriage held a demonstration in San Diego to object to Dronenburg's actions. Sean Sala, a supporter of marriage equality, said of Dronenburg's position:

"Your religion, I respect it, I don't agree with it. But my religion and your religion do not run this land. The Constitution of the United States runs this land."

Later that day, the state Supreme Court rejected Dronenburg's petition by a vote of 6 to 0, during the absence of one justice.

San Diego Gay and Lesbian News tweeted a message about the ProtectMarriage group:

"It's not over! California Supreme Court still has to has to hear petitions to halt same-gender marriage in August." _4,5

The Los Angeles Times reported on JUL-23 that:

"So far, clerks from about 24 of the state's 58 counties, including Los Angeles, have opposed the attempt to revive Proposition 8. They contend that chaos would result if each county was permitted to interpret the marriage laws on its own. ... State officials say the new challenges amount to a back-handed attempt to persuade a state court to interpret a federal judge's order. Such challenges properly belong in federal court, the lawyers for state officials have argued." ₆

However, the U.S. Supreme Court has ruled that Project Marriage has no standing to appeal cases in federal courts. Also, the governor and attorney general have no interest in appealing Judge Walker's decision. This is the ultimate "Catch 22." However, California law allows initiative sponsors to defend their measures in state court. So their only path was to appeal to the California Supreme Court.

The Los Angeles Times continues:

"San Francisco City Atty. Dennis Herrera, whose office is representing four counties, told the [California Supreme Court] ... that [Judge] Walker did not exceed his authority when he blocked enforcement of Proposition 8.

'A district court has the fundamental authority to strike down invalid laws and to enter orders benefiting people not before the court,' Herrera's office argued." ₆

More developments are inevitable.

We recommend to California same-sex couples who intend to marry that they
do it as soon as is possible. You never know in advance when the current window
of opportunity will be slammed shut in your faces.

References used:

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

1. Sharon McNary, "Prop 8 update: Gay marriage opponents ask California Supreme Court to deny licenses," KPCC, 2013-JUL-12, at: http://www.scpr.org/
2. "Hate map," Southern Poverty Law Center, 2013, at: http://www.splcenter.org
3. "18 anti-gay groups and their propaganda," Intelligence Report, Winter-2010, Issue #140, at: http://www.splcenter.org/
4. "County Clerk shows up at protest to defend himself." CBS8, 2013-JUL-23, at: http://www.cbs8.com/
5. Greg Botelho & Amanda Watts, "California court denies bid to halt same-sex marriages in state," CNN, 2012-JUL-24, at: http://edition.cnn.com/
6. Maura Dolon, "California high court again refuses to stop gay marriages," Los Angeles Times, 2013-JUL-2, at: http://www.latimes.com/
7. "California’s County Clerks Meet Over Same-Sex Marriages," KCBS, 2013-JUL-19, at: http://sanfrancisco.cbslocal.com/
8. "California court rejects bid to halt gay marriages in state," Associated Press, 2013-JUL-24, at: http://www.foxnews.com/
9. Maura Dolan, "California Supreme Court again refuses to stop gay marriage," Los Angeles Times, 2013-JUL-23, at: http://www.latimes.com/

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Copyright © 2013 by Ontario Consultants on Religious Tolerance
Original posting: 2013-JUL-12
Latest update: 2013-JUL-29
Author: B.A. Robinson

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