Online extra: Wedding Bell Blues: Imperial County again tries for standing
by Seth Hemmelgarn
The newly elected Imperial County clerk is trying to achieve standing in the Proposition 8 federal case, since state government officials have refused to defend the same-sex marriage ban in court.
Chuck Storey, a Republican who was sworn in as the Southern California county's clerk in January, filed a motion to intervene as defendant-appellant with the 9th U.S. Circuit Court of Appeals on Friday, February 25.
State officials, including Governor Jerry Brown, have refused to defend Prop 8 in the federal court case, known as Perry vs. Schwarzenegger. The state Supreme Court has been asked to determine whether the measure's main backers, Protectmarriage.com, have standing to defend it. The group's lack of standing could mean Prop 8's ultimate defeat.
A deputy Imperial County clerk tried to intervene in the case last year, but the appeals court panel rejected that attempt, saying in its January 4 opinion that if the elected county clerk had presented Imperial County's case, "this argument might have had merit."p>
In his motion, Storey claims to be confused.
He says, "It is unclear to me whether ... Imperial County deputy clerks and other county officials would have a duty to follow Proposition 8 as now enshrined in the California Constitution or to follow the ruling of the district court and issue marriage licenses to, or perform marriage ceremonies for, same-sex couples.
"Such confusion would materially disrupt and impede the performance of my official duties relating to marriage and could potentially cause me and my office liability for refusing to comply with the California Constitution on the one hand or denying same-sex couples a marriage license on the other," he said.
Robert Tyler, who's with the anti-gay Advocates for Faith and Freedom and is assisting Storey, said in an interview that a chief concern is "whether or not the judge's ruling would legally extend to clerks of counties, because they are not under the direct supervision of the state registrar."
Asked what he'd say directly to same-sex couples about why they shouldn't be able to get married, Tyler took a few moments to come up with an answer and said, "Once the legal issue is fully resolved, if the decision winds up in favor of allowing same-sex couples to marry, then they'll have the opportunity to marry. If it is determined that Proposition 8 is constitutional and stands the test of appellate review, then that's the law of the land, and they should take this issue back to the ballot box, not to the courthouse."
The American Foundation for Equal Rights filed a federal lawsuit against the measure in 2009. Last summer, U.S. District Court Judge Vaughn Walker ruled Prop 8 is unconstitutional. That decision was quickly appealed.
In January, a panel of federal appellate judges asked the state Supreme Court to advise it on whether Protectmarriage.com, Prop 8's main backers, has standing to defend the anti-gay law in federal court.
The issue of whether Protectmarriage.com has standing in the federal lawsuit has been a key issue in the case since both former Governor Arnold Schwarzenegger and Brown, previously serving as the state's attorney general, refused to defend Prop 8 before the 9th U.S. Circuit Court of Appeals when the three-judge panel heard oral arguments in December. Current Attorney General Kamala Harris has also said she wouldn't defend it.
Because neither of the state's top law enforcement officers is willing to defend Prop 8, the anti-gay group has sought to do so in the federal lawsuit.
The issue of standing is key, as should it be determined that protectmarriage.com has no right to intervene, then Walker's ruling would stand. It will likely be up to the U.S. Supreme Court to decide the matter, though, as the losing side in the case is expected to appeal the appellate court's ruling.
Theodore Olson, lead attorney for the lawsuit challenging California's same-sex marriage ban, announced Wednesday, February 23 that he is asking the 9th U.S. Circuit Court of Appeals to lift a stay on a district court ruling that found Proposition 8 unconstitutional.
The request, if granted, would enable same-sex couples to marry immediately.
Feinstein pledges DOMA repeal
Senator Dianne Feinstein (D-California) has said that she plans to introduce legislation to eliminate the federal Defense of Marriage Act once and for all.
In a statement released Wednesday, February 23, Feinstein said, "As a member of the Judiciary Committee, it is my intention to introduce legislation that will once and for all repeal the Defense of Marriage Act."
She said that "when two people love each other and enter the contract of marriage, the Federal government should honor that."
Feinstein noted that she opposed DOMA in 1996, when President Bill Clinton signed the act barring federal rights for same-sex couples into law.
"It was the wrong law then; it is the wrong law now; and it should be repealed," Feinstein stated.
Her statement follows the announcement last week by U.S. Attorney General Eric Holder that the Obama administration has concluded that one part of DOMA will not be able to pass constitutional muster in the 2nd Circuit and that it, therefore, will not defend that part of the law in two pending cases.
Wedding Bell Blues is an online column looking at various issues related to the marriage equality fight in California and elsewhere. Please send column ideas or tips to Seth Hemmelgarn at email@example.com or call (415) 861-5019. Wedding Bell Blues appears every other Tuesday.