California Same-Sex Marriage Opponents Stand and Fight on Technicality

Prop 8 sponsor group says governor can't ignore state law until apellate court deems it unconstitutional

Last Updated: July 24, 2014 @ 12:00 PM

Same-sex marriage opponents aren't giving up in California — now they're asking the state Supreme Court to order county clerks to deny gays marriage licenses based on a technicality in state constitutional law, court officials tell TheWrap.

Their argument: That the governor's office lacks the authority to end Prop 8's enforcement, despite the recent Supreme Court ruling striking it down.

The group, ProtectMarriage, originally sponsored the Prop 8 ballot measure in 2008. In their Friday filing, the group says the state constitution forbits officials from refusing to enforce a law unless an appellate court has deemed it unconstitutional — which they argue hasn't technically happened.

Also read: Gay Marriage Wins: Supreme Court Ends Prop 8

The U.S. Supreme Court on June 26 overturned part of the Defense of Marriage Act and let lower court's ruling overturning Prop 8. Despite that, there is no appellate ruling saying Prop 8 is unconstitutional.

ProtectMarriage's 50-page challenge also argues that the San Francisco federal judge’s injunction against Prop 8 — which the Supreme Court let stand — doesn't apply to county clerks who issue marriage licenses.

The state Supreme Court, which is scheduled to meet Wednesday, could reject the challenge — but is more likely to defer the challenge to federal courts.

Pamela Chelin contributed to this report.