BY AUSTIN R. NIMOCKS | JULY 24, 2013
Prop. 8 proponents ask California Supreme Court to uphold rule of law
Alliance Defending Freedom attorneys say clerks need to enforce law, not bound by district court injunction
SAN FRANCISCO — Alliance Defending Freedom attorneys representing the official proponents of Proposition 8 asked the California Supreme Court Friday to order the state’s county clerks to enforce the state’s marriage amendment.
The U.S. Supreme Court’s June 26 decision in Hollingsworth v. Perry did not rule on Proposition 8’s constitutionality, and the district court’s 2010 injunction does not apply statewide.
“Everyone on all sides of the marriage debate should agree that the legal process must be followed. Public officials should enforce the marriage amendment because they are not bound by the district court’s injunction,” said Senior Counsel Austin R. Nimocks. “The U.S. Supreme Court did not rule on the constitutionality of Proposition 8, and the district court’s injunction does not apply statewide; therefore, county clerks should abide by the state constitution.”
Immediately after the U.S. Court of Appeals for the 9th Circuit lifted its stay of the district court order on June 28, California State Registrar Tony Agurto ordered all county clerks to begin issuing marriage licenses in violation of state law. Even though the registrar does not have the authority to issue such orders to county clerks, California Attorney General Kamala Harris publicly stated that she will take legal action against any clerk who declines to follow the registrar’s directive.
The petition filed in Hollingsworth v. O’Connell demonstrates that the district court’s 2010 injunction does not bind all county clerks. Because of that, the petition explains, “This Court’s case law requires executive officials charged with ministerial duties to execute those duties regardless of their or others’ views about the constitutionality of the laws imposing those duties.”
Additionally, according to the petition, “Article III, section 3.5 of the California Constitution prohibits government agencies and officials from declaring state law unenforceable, or declining to enforce state law, on the basis that the law is unconstitutional, unless an appellate court has first made that determination. The Ninth Circuit’s decision in Perry has been vacated; hence there is no appellate decision holding that Proposition 8 is unconstitutional. Petitioners are thus entitled to a writ of mandate requiring Respondents to comply with state law defining marriage as a union between a man and a woman.”
“The more than 7 million Californians that approved Proposition 8 have a right to see the rule of law--and the constitutional initiatives that the people enact--respected,” Nimocks said.
Alliance Defending Freedom attorneys filed the petition together with Andrew P. Pugno, general counsel for ProtectMarriage.com, the banner organization for the official proponents and campaign committee of Proposition 8.
Alliance Defending Freedom is an alliance-building, non-profit legal organization that advocates for the right of people to freely live out their faith.
Austin R. Nimocks serves as senior counsel for Alliance Defending Freedom at its Washington, D.C., Regional Service Center, where he leads the marriage litigation team and defends religious freedom. Nimocks earned his J.D. from the Baylor University School of Law in Waco, Texas. He is admitted to the bars of the District of Columbia, Texas, Mississippi, Alabama, Arizona, the U.S. Supreme Court, and the U.S Courts of Appeal for the D.C., 1st, 4th, 5th, and 9th Circuits and he has also appeared before various federal and state courts around the country.