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California County Clerk Sues To Reinstate Proposition 8

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"California County Clerk Sues To Reinstate Proposition 8"

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Ernest J. Dronenburg, Jr.

The San Diego County Clerk, Ernest J. Dronenburg, Jr., has filed what is now the third lawsuit attempting to reinstate California’s Proposition 8 banning same-sex marriage. Apparently he will be joined by suits from 19 more of the 58 county clerks, who are asking the California Supreme Court to take a very narrow reading of the federal injunction against the measure left in place after the U.S. Supreme Court decision in June.

Dronenburg is represented by Chuck LiMandri of the Freedom of Conscience Defense Fund, which is also defending ex-gay therapy in New Jersey. One of the claims made in the petition is that Dronenburg is personally injured by having to marry same-sex couples:

Petitioner is suffering, and will continue to suffer, irreparable injury and damage unless this Court requires Respondents to execute their supervisory duties, which do not include control over county clerks issuing marriage licenses, consistent with state law limitations.

Petitioner is suffering, and will continue to suffer, irreparable injury and damage unless this Court issues an immediate temporary stay during the pendency of these writ proceedings (1) that orders Respondents not to enforce the State Registrar’s directive commanding county clerks to issue marriage licenses contrary to state law defining marriage as the union between one man and one woman, and (2) that direct Petitioner to refrain from issuing marriage licenses contrary to state law defining marriage as the union between one man and one woman until this Court settles the important issues raised in this Petition.

This suit makes the same argument made in a similar suit filed recently by the proponents of Prop 8, claiming the federal injunction does not apply state-wide because the governor and attorney general do not have supervision over county clerks. The California Supreme Court refused to issue a stay in that suit, but has asked to be briefed in the coming weeks. A state court does not have authority, however, to overturn a federal injunction — only a federal court can interpret its scope to mean something more narrow, and Justice Anthony Kennedy already refused to do that. Even if the California Supreme Court rules that county clerks operate independently of state leaders, Judge Vaughan Walker’s injunction declared Prop 8 unconstitutional, “permanently enjoining its enforcement” — presumably by anybody.

State Attorney General Kamala Harris responded to the suit that nothing has changed:

The filing offers no new arguments that could deny same-sex couples their constitutionally protected civil rights. The federal injunction is still in effect, and it requires all 58 counties to perform same-sex marriages. No exceptions.

The other county clerks are expected to submit their similar filings by the end of the day Monday.

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