It’s going on three weeks since same-sex couples regained the right to civil marriage in California, in the aftermath of what amounted to the Supreme Court’s dismissal of the case. Still, Prop 8 proponents, whom the Supreme Court ruled lacked legal standing to appeal the case, are continuing to dispute the point.
Since the U.S. Supreme Court’s decision to essentially dismiss the case, the state has been issuing marriage licenses, pursuant to District Judge Vaughn Walker’s 2010 ruling finding Prop 8 unconstitutional. Prop 8 supporters argue that this ruling itself was invalid, and relegated only to the two gay couples that brought the case itself. They further argue that county clerks throughout California have no legal obligation to obey the ruling, and that the clerks alone have the authority to issue marriage licenses.
The organization ProtectMarriage, which supports Proposition 8, has since brought the case to the California Supreme Court, which is expected to rule on it later in the summer. On Monday, the Court rejected a request to issue a stay on gay marriages in California pending its ruling.
The main problem with Protect Marriage’s case, and with the broader argument of Proposition 8 proponents, is one of jurisdiction. By bringing a case contesting the scope of a federal court decision (the 2010 ruling by Vaughn Walker) before a state court, they’re essentially trying to replay the arguments, in state court, that they brought before the federal Ninth Circuit Court and U.S. Supreme Court, both of which did not find in their favor.
Beyond that question of jurisdiction, there remains the question of legal standing. Just last month, the Supreme Court found that Prop 8 supporters lacked the legal standing to challenge the case in court. ProtectMarriage, the organization that was involved in the U.S. Supreme Court case, is the same organization that is attempting to continue litigating the case before the California Supreme Court. Presumably, it will still have a problem arguing that it has the legal standing to do so.
Ultimately, given California Attorney General Kamala Harris’ refusal to defend Proposition 8 in court, and given the clarity of the U.S. Supreme Court’s finding of Prop 8 proponents' lack of legal standing, it seems unlikely that any continued challenges to the issuance of civil marriage licenses to gay and lesbian couples will be successful. Whether the U.S. Supreme Court clearly rules on whether or not same sex couples have a constitutional right to marry throughout the country, it seems likely that they will continue to have a constitutional right to do so in California.