Monday, July 15, 2013

New Petition To California Supreme Court Argues That Proposition 8 Must Still Be Enforced

While it has been widely assumed (see prior posting) that last month's U.S. Supreme Court decision in Hollingsworth v. Perry reinstating a federal district court's injunction had the effect of legalizing same-sex marriage in California, a petition filed Friday with the California Supreme Court argues that this is not the case. (ADF press release). The petition and accompanying memorandum (full text) in Hollingsworth v. O'Connell, (CA Sup. Ct., filed 7/12/2013) seeks a writ of mandate ordering 58 county clerks to enforce Proposition 8. Petitioners, who were the official proponents of Proposition 8, argue in part in their filing with the California Supreme Court:
The Perry injunction is no bar to this outcome, for at least two reasons. First, that injunction does not require any county clerk to cease future enforcement of Proposition 8. The Perry court’s authority was limited to providing injunctive relief for the four plaintiffs in that case. Because those plaintiffs have recently been married, all relief due under that injunction has already been provided, and therefore none of the county clerks are required by that injunction to stop enforcing Proposition 8 in the future. Second, and alternatively, the Perry injunction does not require the 56 county clerks who were not defendants to that action to stop enforcing Proposition 8. The injunction purports to cover all persons under the supervision or control of the named state defendants. But none of those state officials have authority to supervise or control county clerks when issuing marriage licenses. Therefore, the Perry injunction does not bind the 56 county clerks not named as defendants in that case.

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