The recent court decision legalizing gay marriage in California has not led to long lines or crowds of same-sex couples looking to wed in the Mother Lode so far.
According to the Tuolumne County Clerk’s office, two marriage licenses have been issued in the county to same-sex couples since gay marriage became legal in the state earlier this month. Calaveras County is not reporting a large boost in licenses to wed, though their county clerk did not have exact numbers on Friday.
Same-sex couples have been legally allowed to marry in California since the U.S. Supreme Court overturned the 2008 ballot initiative Proposition 8 in late June. Proposition 8, which was approved by voters statewide, banned gay marriage only months after a state court found those unions to be legal in California.
The court also ruled the federal Defense of Marriage Act to be unconstitutional, forcing federal institutions to recognize same-sex unions from states where they are legal.
“A marriage license is a marriage license” now in the Mother Lode, said Calaveras County Clerk/Recorder Madaline Krska.
Krska said on Friday that the county is not tracking numbers for same-sex marriage licenses, and suggested anyone who wants exact numbers can look over the county index. But the 94 people total who have married this year so far is about the same as last year at this time.
Krska said that doesn’t necessarily reflect the number of weddings in the area, as any county can issue a license for any state resident.
“A person can live in Siskiyou County, get their marriage license in Santa Clara County and get married in Calaveras County,” she said.
About 450 people a year take out a marriage license in Tuolumne County, Clerk/Recorder Deborah Bautista said.
In 2008, when gay marriage was legal for a few months, Bautista said the number of same-sex marriage licenses issued in the county was about 20.
“Last time, we didn’t have the volume either,” Bautista said.
The legal wrangling over gay marriages isn’t over in California.
The group that sponsored Prop. 8 on Friday said it’s launched a new, two-pronged legal attack in what one expert described as a last-ditch argument with little chance of succeeding.
In its petition to the California Supreme Court, ProtectMarriage argued that state officials who began issuing marriage licenses to gay couples had incorrectly interpreted the U.S. Supreme Court ruling.
The higher court ruled that ProtectMarriage had no “standing” to challenge a previous ruling by the Ninth U.S. Circuit Court of Appeal that struck down Proposition 8.
ProtectMarriage argued in its Friday petition that Proposition 8 remains California law because the U.S. Supreme Court didn’t rule directly on the constitutionality of same-sex marriages in what is widely called the “Perry” case.
“The Ninth Circuit’s decision in Perry has been vacated,” the petition stated, “hence there is no appellate decision holding that Proposition 8 is unconstitutional.”
Therefore, the petitioners conclude, the Proposition 8 ban on same-sex marriages is still in force.
The petitioners also argued the original lawsuit filed in San Francisco named only the county clerks of Los Angeles and Alameda counties. It said the ruling doesn’t reach the 56 other county clerks, who must continue to abide by the marriage ban passed by Proposition 8.
The petition argues county clerks are independent state officials and the state registrar — under orders from Gov. Jerry Brown and the California Attorney General Kamala Harris — had no authority to direct them on June 26 to begin issuing same-sex marriage licenses.
Late Friday Harris filed a brief urging the California Supreme Court to deny the request to stop counties from issuing marriage licenses to same-sex couples.
“Today’s filing by the proponents of Proposition 8 is yet another attempt to deny same-sex couples their constitutionally protected civil rights. It is baseless and we will continue to fight against it,” Harris said.
“The Legislature has not imbued the state registrar with supervisory authority or control over county clerks issuing marriage licenses,” the ProtectMarriage petition stated.
Ted Olson, one of several high-profile attorneys who represented same-sex couples in the courts, called the petition “utterly baseless.”
Olson said any county clerk refusing to follow the state’s orders to issue same-sex marriage licenses faced contempt of court charges and federal civil rights lawsuits.
“Proponents’ latest effort to stop loving couples from marrying in California is a desperate and frivolous act,” Olson said.
University of California, Davis law professor Vikram Amar predicted the state Supreme Court would reject the petition and keep same-sex marriages intact.
Amar said the petition’s main arguments appear to fall only under the jurisdiction of federal judges. Since the U.S. Supreme Court has already banned ProtectMarriage and its allies from defending Proposition 8 in federal court, it appears they have almost no legal recourse, he said.
“My guess is that the California Supreme Court will not be eager to wade into this because so much of this turns on federal questions,” Amar said.
A ruling is not expected until at least Aug. 1, the last day the California Supreme Court said it would accept written arguments on the matter.
The state Supreme Court in 2008 ruled 4-3 that same-sex marriages were legal, which prompted marriage foes to place Proposition 8 on the ballot. Since then, two of the justices who voted for gay marriage have retired.
The Associated Press contributed to this report.
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