California County Clerks Warned to Not Issue Marriage Licenses to Gay Couples

Sacramento, CA—Attorneys with the Pacific Justice Institute last week sent a letter to county clerks throughout California, warning them not to issue marriage licenses to homosexual couples.

“Except for the two counties of Alameda and Los Angeles actually named as defendants in the Prop. 8 lawsuit, there is currently no legal authority that would allow the other 56 counties in California to disregard Prop. 8,” noted Kevin Snider, PJI’s staff attorney who wrote the letter. Brad Dacus, the president of PJI, commented, “We are back to the lawlessness of 2004, when Gavin Newsom started issuing marriage licenses that the California Supreme Court later invalidated.”

After the Supreme Court ruling, it was widely misreported that the U.S. Supreme Court invalidated Prop. 8, the traditional definition of marriage now enshrined in the California Constitution. In actuality, the Supreme Court’s decision that the official proponents of Prop. 8 could not appeal an adverse decision means that now-retired Judge Vaughn Walker’s order against Prop. 8 will be reinstated. “However, that order applies only to the parties before it and not to the entire state,” said staff attorney Matthew McReynolds.

In its letter, PJI points out that, under Article 3, Section 3.5 of the California Constitution, administrative agencies—including state agencies that prepare marriage license forms—cannot consider a law to be unconstitutional until an appellate court has so ruled. Since that has not happened with Prop. 8, most county clerks must continue to regard it as binding, regardless of any directives by state officials to the contrary.

PJI also noted that, in the middle of the Prop. 8 lawsuit two years ago, Judge Reinhardt of the Ninth Circuit Court of Appeals criticized the plaintiffs for only seeking a limited injunction that would not likely apply statewide.

“The rule of law is being trodden underfoot by the opponents of Prop. 8,” said Dacus. “We are pointing the county clerks back to what the law actually says—not what activist judges or overzealous politicians are claiming.”

PJI is offering to defend county clerks who continue to regard Prop. 8 as binding and deny same-sex marriage licenses.

Photo credit: Mark James Miller via Wikimedia Commons (CC By 3.0)