They have filed a claim called Hollingsworth v. O'Connell before the California Supreme Court making the (frankly ludicrous) argument that the federal injunction currently in effect against Proposition 8 only applies to the two counties in which the original plaintiffs who filed the lawsuit are from, namely Los Angeles County and San Francisco.
Moments ago, we filed a new petition in the California Supreme Court against all of California’s 58 county clerks, and state officials, seeking to restore the enforcement of Proposition 8, the state’s constitutional amendment limiting marriage to a man and a woman. The undeniable fact is, the man-woman definition of marriage, as passed by a majority the voters, is still a valid part of our state constitution.
Yet county clerks statewide are lawlessly defying that law by issuing gender-neutral marriage licenses. We are asking California’s Supreme Court to restore the rule of law and the public’s confidence in the integrity of the initiative process.
The action we filed today contends that at least 56 of the 58 county clerks must continue to follow Proposition 8 because they were not parties to the recent federal lawsuit against Prop 8, and that the state’s governor and attorney general have no legal authority to order local county clerks to disregard the state constitution.Amusingly, AFER, the organization behind the Proposition 8 federal lawsuit, has not even bothered to dignify ProtectMarriage.com's claim with a response.
San Francisco City Attorney Dennis Herrera was not so kind, and gently explained the basics of the law and reality to the fuzzy thinking homophobes:
This motion is a desperate obstruction tactic used in the vain hope of pursuing an unconstitutional agenda. The opponents of the freedom to marry have chosen to ignore the Supremacy Clause of the Constitution, a U.S. Supreme Court ruling, and the well-settled California marriage case of Lockyer v. San Francisco, which they themselves celebrated at the time. Their motion has essentially no chance to succeed. The most basic concepts of American law tell us that a state court cannot and will not overrule the federal judiciary. The citizens of California are left wondering when these people will realize that, having lost the moral struggle years and years ago, they have now lost the legal struggle as well. Marriage equality is now the law in the State of California, and will remain so from this point onward. Together we will soon see the day when it is the law all across America.I've emphasized the key sentence in the middle of the quote. The homophobes won before the California Supreme Court in 2009 in Strauss v. Horton when the state's highest court ruled that Proposition 8 did not violate the state constitution. But in Perry v. Brown, the homophobes lost in federal court and the United States Supreme Court ruled in Hollingsworth v. Perry that they have no right to appeal that ruling. Ergo, Proposition 8 is dead.
Actually, what is even more ironic is that the case of Lockyer v. San Francisco which the homophobes won is now coming back to bite them on the butt. Then the state Supreme Court ruled that state officials and not local county officials have the sole right to determine who can or can not get married in response to Mayor Gavin Newsom's wilful defiance of state law way back in 2004. This resulted in the annulment of thousands of same-sex couples' marriages who had been married at the time between February 12 and March 11 in San Francisco. But that same principle is now what prevents ProtectMarriage.com from claiming that 56 of 58 counties can enforce Proposition 8 while 2 of them do not. (Actually the make the even more nonsensical argument that all 58 counties have to enforce Proposition 8 because it is still present in the California Constitution, but I digress.) The responsible state officials Attorney General Kamala Harris and Governor Jerry Brown have recognized that a federal court is stopping them from enforcing Proposition 8 and thus same-sex couples can get married.
That being said, to end the debate completely again, the Legislature should pass a state constitutional amendment removing Proposition 8 from the state Constitution and re-affirming marriage equality so that the people can have their voice heard again on this question in November 2014.
Hat/tip to Joe.My.God