Some people just don’t know when to quit. On June 26, the US Supreme Court ruled that those sponsoring Proposition 8, a ballot initiative from 2008 that defined marriage as being one man and one woman, did not have the legal right to appeal a judge’s ruling that declared the initiative unconstitutional. The Supreme Court voted 5-4 to reinstate the order of the trial judge and to permit same-sex marriage in the state of California. What the Supreme Court did not do was remove the amendment from California’s constitution. Those against same sex marriage claim that current governor Jerry Brown has no authority to block enforcement of Proposition 8.
The group that sponsored the initiative in 2008, Protect Marriage, has launched a new attack following the Supreme Court’s decision. The group is arguing that because the Supreme Court did not make a ruling on the constitutionality of the case, Proposition 8 remains in effect in the state. In another argument, Protect Marriage claims that the original lawsuit filed in 2010 only named clerks from two counties, not from the other 56 counties in the state. The group is trying to argue that county clerks are independent and that officials from the state cannot order them to issue marriage licenses to same sex couples.
It’s highly likely that the state court in California will reject the group’s challenge, in part because the decision has moved beyond the realm of state courts and into the federal court arena. Law professor Vikram Amar told the “Los Angeles Times” that it is likely that the state supreme court will look at Protect Marriage’s challenge as an opening to intervene in what has become a federal issue. Since it’s a federal matter, Amar believes the state court will stay out of it.
Other legal opinion is against Protect Marriage. Justice Carlos R. Moreno, formerly of the state Supreme Court, stated that he expected the court to reject the challenge. Law professor Gerald Uelmen, an expert on constitutional law and the state constitution, pointed out that the provision Protect Marriage is claiming does not apply to constitutional amendments, which is what Proposition 8 is.
The state of same sex marriage has been up for debate for years in California. The state’s Supreme Court ruled that a ban on same sex marriage was unconstitutional in 2008. But, the ballot initiative Proposition 8 led them to overturn that ruling and pass an amendment prohibiting marriage between partners of the same sex.