California's Prop 8 Backers File Emergency Petition to Supreme Court to Halt Gay Marriage

Supporters of California's Proposition 8 petitioned U.S. Supreme Court on Saturday, seeking an immediate halt to same-sex marriages that have been taking place in the state since an appeals court lifted the ban on Friday.

Attorneys filed an emergency petition to the Supreme Court to stop the Ninth U.S. Circuit Court of Appeal's "premature move" requiring same-sex marriage licenses in California before the Supreme Court's decision even goes into effect, Prop. 8's official sponsor ProtectMarriage and Arizona-based Alliance Defending Freedom said in separate statements on Saturday.

On Friday, soon after the appeals court dissolved a stay imposed on Prop 8, a California voter-approved amendment of 2008 that defined marriage as between one man and one woman, two same-sex couples who had petitioned the Supreme Court against the measure rushed to marry.

Gov. Jerry Brown's office issue a statement almost immediately after the appeals court's ruling, saying, "At the direction of Governor Edmund G. Brown Jr., the California Department of Public Health has notified clerks and registrar/recorders in all 58 California counties that same-sex marriage is now legal in California and that marriage licenses must be issued to same-sex couples immediately."

Attorney General Kamala Harris had urged the appeals court for prompt action, promising she would ensure that all counties in California were prepared to issue licenses to gay couples, according to The Associated Press.

According to Supreme Court procedural rules, "final disposition" comes when the Supreme Court issues a "mandate" to the Ninth Circuit, at least 25 days after announcing its opinion in the case, ProtectMarriage said in its statement Saturday. "The 25-day waiting period is provided to allow parties such as Prop 8's proponents to petition the Supreme Court for a re-hearing of the case."

"Everyone on all sides of the marriage debate should agree that the legal process must be followed," said Alliance Defending Freedom Senior Counsel Austin R. Nimocks. "The 9th Circuit made a clear representation upon which all parties should be able to rely – that the stay would remain in place until final disposition by the Supreme Court," he added. "On Friday, the 9th Circuit acted contrary to its own order without explanation. Last year, the 9th Circuit itself reminded all parties to the Proposition 8 case that the 'integrity of our judicial system depends in no small part on the ability of litigants and members of the public to rely on a judge's word.' We agree."

Andy Pugno, General Counsel for ProtectMarriage, said, "We hope the Supreme Court will step in and restore some order here."

The application, filed by attorneys of Alliance Defending Freedom, stated that the Ninth Circuit's June 28 order purporting to dissolve the stay of the district court's injunction "is the latest in a long line of judicial irregularities that have unfairly thwarted Petitioners' defense of California's marriage amendment … Failing to correct the appellate court's actions threatens to undermine the public's confidence in its legal system."

The American Foundation for Equal Rights, which supports same-sex marriage, also issued a statement, saying, "Now that the Supreme Court has decided that the injunction against Proposition 8 must stand, it was entirely appropriate for the 9th circuit to dissolve its stay of that injunction."

However, Nimocks said their clients have not been given the time to make their next decision in the legal process. "The more than 7 million Californians that voted to enact Proposition 8 deserve nothing short of the full respect and due process our judicial system provides."

Currently, 12 U.S. states and the District of Columbia have legalized gay marriage.

Which people? How many people are required to create standing. The requirement to have standing to be a party to a law suit is a good rule. They could solve the problem by a state constitutioal change that requires the state to appoint an independant counsel to defend the position of those who voted for an initiative when the state chooses not to defend it. The same argument would apply that the state chose to use in Prop 8. They argued that it was the States position Prop 8 was unconstitutional. If I remember correctly the argument was made that if an initiative passed that allowed slavery the state would have no business defending that obviously unconstitutional law. Remember California is a one party state controlled by the left wing of that party.
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Generally, republican government is where the people's authority is exercised through their representatives, not directly by ballot initiatives.

You’ve caused me to do some more reading. Thank you.

There is an interesting discussion that argues that ballot initiatives are a part of “republican form of government.” It does this in a pdf article entitled, “Are Initiatives and Referenda Contrary to the Constitution’s “Republican Form of Government?" by Robert G Natelson. If I could provide a link to the pdf article I would, but I don’t know how to do that. You might try looking it up on Bing or Google.

Here are excerpts from Justice Anthony Kennedy's dissent in the Prop 8 case with respect to who has standing in the case. He was joined by Alito, Thomas, and Sotomayor. Sotomayor? Strange grouping.

Under California law, a proponent has the authority to appear in court and assert the State’s interest in defending and enacted initiative when the public officials charged with that duty refuse to do so. The State deems such an appearance essential to the integrity of its initiative process. Yet the Court today concludes that his state-defined status and state–conferred right fall short of meeting federal requirements because the proponents cannot point to a formal delegation of authority that tracks the requirements of the Restatement of Agency. But the State Supreme Court’s definition of proponents’ powers is binding on this Court. And that definition is fully sufficient to establish the standing and adversity that are requisites for justiciability under Article III of the United States Constitution.

… The Court’s reasoning does not take into account the fundamental principles or the practical dynamics of the initiative system in California, which uses this mechanism to control and bypass public officials – the same officials who would not defend the initiative, an injury the Court now leaves unremedied. The Court’s decision also has implications for the 26 other States that use an initiative or popular referendum system and which, like California, may choose to have initiative proponents stand in for the State when public officials decline to defend an initiative in litigation.

Here are links to a couple of articles that discuss initiatives and this case: http://www.sanluisobispo.com/2013/06/27/2563665/supreme-court-gay-marriage-ruling.html and http://www.washingtontimes.com/news/2013/jun/30/critics-say-supreme-courts-proposition-8-ruling-ta/?page=2

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