While the city, and the LGBT community of the entire state, is going to be no doubt jubilant today at the news that the Supreme Court has knocked the Prop 8 case back to the lower court opening the door for gay marriages to resume in California where they left off in 2008 there looms the possibility of anti-gay marriage folks bringing a new appeal, which could delay the resumption of marriages a bit. City Attorney Dennis Herrera released a statement this morning just minutes after the ruling was announced stating that he is "prepared to litigate immediately against any effort to limit or delay the restoration of marriage equality for all Californians." Also, Governor Brown has issued his own statement heading off challenges by county clerks.
At issue is the fact that Chief Justice John Roberts, writing for a majority that included both liberal justices and one fellow conservative (Scalia), crafted a narrow ruling on a procedural question that, in its text, does not invalidate the merits of Prop 8 or the ballot initiative system though in his dissent, Justice Kennedy suggested that the majority "fails to grasp or accept is the basic premise of the initiative process." In oral arguments, Roberts previously suggested that when it came to standing, he could see that "there might be people out there with their own personal standing, someone who performs marriages and would like that to remain open to everyone but would prefer not to perform same-sex marriages." Though he didn't say so explicitly, and though he did not repeat the idea in the text of the decision, he was implying that an earlier possible challenge by Imperial County clerk-recorder Chuck Storey to the Prop 8 ruling might have represented a valid case of legal standing.
Storey, for his part, has not said he would challenge a Supreme Court ruling, though attorney Robert Tyler of Advocates for Faith and Freedom, who represented Storey in 2011, told the Chronicle back in March that Storey would be ready to bring a new challenge if need be.
SFist called the County Clerk's office in Imperial County this morning seeking comment from Storey, but he has not yet returned our call. Herrera spokesman Matt Dorsey today said that while they don't yet know of any challenges in the works by individuals or counties, Imperial County is a likely candidate. "They would be my first guess," he said.
Herrera's office points to arguments made in legal briefs by proponents of Prop 8 suggesting that Judge Vaughn Walker's 2010 decision should only apply to the two couples named in the suit, or only to the Counties of Alameda and Los Angeles, where those couples reside. The precedent to argue against this is, ironically, the same California Supreme Court decision back in 2004 that stopped gay marriages happening in San Francisco. It stated that marriage was a statewide institution and could not be individually decided on or regulated by counties.
Stay tuned for possible rumblings today from the anti-equality side, and hints as to what their next tactic may be. Fingers crossed that they're just going to give up on California and move on.
Update: Governor Jerry Brown has issued the following statement, directly aimed at folks like Storey.
The Governor has directed the California Department of Public Health to advise county officials today that the district court’s injunction against Proposition 8 applies statewide and that all county clerks and county registrar/recorders must comply with it. However, same-sex Californians will not be able to marry until the Ninth Circuit Court of Appeals confirms the stay of the injunction, which has been in place throughout the appeals process, is lifted.
In preparation for this outcome, Governor Brown sought an opinion from California Attorney General Kamala D. Harris on whether the state, through the California Department of Public Health, can advise county clerks and registrar/recorders that they are bound by the federal district court’s ruling that Proposition 8 is unconstitutional.
The Attorney General concluded that the California Department of Public Health “can and should” instruct county officials that they “must resume issuing marriage licenses to and recording the marriages of same-sex” couples. The Department will issue another letter to county officials as soon as the Ninth Circuit Court of Appeals confirms the stay is lifted.