In what legal analysts term a last-ditch effort to block same-sex marriages in California, Folsom attorney Andrew Pugno filed a petition Friday asking the California Supreme Court to bar county clerk recorders from issuing marriage licenses to gay and lesbian couples.
"This has become more than just a fight over marriage," Pugno said in a prepared statement. "The authority of local government officials, and the future of the initiative process itself, is put at grave risk if state officials are allowed to nullify a proposition by executive order, backed by no binding legal precedent."
Same-sex marriage resumed in California on June 28, minutes after the 9th U.S. Circuit Court of Appeals lifted its stay on gay marriage – and two days after the U.S. Supreme Court refused to take action on California's voter-approved gay marriage ban, Proposition 8.
The Supreme Court ruled that Pugno, his group, ProtectMarriage, and the initiative's other defenders did not have standing to bring the case before the court.
Pugno's 50-page California Supreme Court filing, which names the state's 58 county clerks and Gov. Jerry Brown as defendants, contends that the governor and attorney general lacked the authority to order local officials to resume issuing same-sex marriage licenses after the 9th Circuit lifted its stay.
Further, the lawsuit contends that in the absence of a valid appellate ruling, state officials are bound to uphold voter-passed initiatives.
The U.S. Supreme Court's action vacated a 9th Circuit ruling affirming a 2010 federal district court decision by Judge Vaughn Walker that declared Proposition 8 unconstitutional. Walker's decision remains in place as the final ruling.
"The petition attempts to rely on a California constitutional provision requiring state officials to enforce California statutes unless an appellate court declares them invalid," said David Codell, legal director of UCLA Law School's Williams Institute, a gender law think tank.
"That provision does not apply to constitutional amendments such as Proposition 8. And in any event, a final federal court ruling such as the district court ruling striking down Proposition 8 is supreme over any state law, period."
Other legal experts also said it was unlikely the state high court would look favorably on the new challenge.
"The California Supreme Court could take the case up if they want to, but I don't expect they'll want to," said Vikram Amar, associate dean at the UC Davis School of Law and a constitutional law expert.
"I'd be mildly surprised if the California Supreme Court decides to enter this fray, but you can't predict anything with certainty in this setting."
Late Friday, Attorney General Kamala Harris filed a brief urging the court to deny the request, the Associated Press reported.
In the weeks since same-sex marriages resumed in California, hundreds of gay couples have obtained marriage licenses. Should the state Supreme Court take up the petition and rule in Pugno's favor, the status of those marriages could be at stake.
Sacramento County's chief deputy clerk recorder, Donna Allred, said her office doesn't keep track of the gender of couples applying for marriage licenses.
"We don't differentiate between same-sex couples and opposite-sex couples," she said. "So I have no idea how many same-sex marriage licenses we've issued. We've been very busy, though, quite a bit busier than usual."
Call The Bee's Anita Creamer, (916) 321-1136. Follow her in Twitter @AnitaCreamer.