Cal. Sup. Ct. Denies Order To Revive Prop 8, But...

Whoa, nelly! On Monday, the California Supreme Court denied another desperate attempt by the heterosexual supremacists at ProtectMarriage.com (a.k.a. the proponents of Proposition 8 who lost at the United States Supreme Court three weeks ago) to stop county clerks from issuing marriage licenses to same-sex couples. That was expected.

However, what was somewhat unexpected was that the state Supreme Court also agreed to hear the merits of the case Hollingsworth v. O'Connell filed by marriage equality opponents last Friday that Proposition 8 is still the law of the land for the 56 counties in California that they claim were not covered by Judge Vaughn Walker's injunction against it.

They are expediting their consideration of the case with opposing briefs (from the good guys, California Attorney General Kamala Harris and Governor Jerry Brown) due on Monday July 22 and then reply briefs from the homophobes on Thursday August 1.

SCOTUSblog summarizes the state of play:

Some uncertainty hangs over gay and lesbian marriage rights in the nation’s largest state nearly three weeks after the U.S. Supreme Court had appeared to clear the way for those couples to wed, with its decision in Hollingsworth v. Perry.  A series of legal maneuvers by the “Proposition 8″ supporters has put the issue back before the state’s highest court, which has given signs that it intends to act speedily.

At this point, the seven-judge tribunal that sits in San Francisco has sharply conflicting arguments before it: a claim by state officials that marriage equality is now fully established throughout California’s fifty-eight counties and that the state court will only get into conflict with the federal courts and put county clerks at legal risk if it acts now to stop such marriages, and a rival claim by “Proposition 8″ backers that the right to marry is in effect in, at most, two counties, and that the state court has the authority and a legal duty to order the continued enforcement of that ban in the other fifty-six counties.

There is also a direct conflict over what the two sides say the state court should do at this point: state officials have said it should refuse to get involved at all, and should deny immediately all of the claims of the ban’s supporters, while the “Proposition 8″ legal team has said that the court should act now to put everything on hold until it can rule finally on the legal status of the ban under California law.

State officials are relying on their interpretation of a ruling in August 2010 by a federal district judge in San Francisco, striking down “Proposition 8″ under the federal Constitution.  There is nothing left that the California Supreme Court can do, they assert.  The ballot measure’s defenders are relying on a provision in the state constitution that says that state officials must continue to enforce state law until a definitive court ruling invalidates it.  That, they said, has not yet been done completely under the terms of the state constitution.

So, basically the CASC denied the emergency motion but is still considering the separate question of whether (or which counties) Proposition 8 is in effect.

Stay tuned!