Not So Fast: New Supreme Court Filing as California Jumps The Gun on Gay Marriage

Ken Klukowski is Director, Center for Religious Liberty at Family Research Council. This article appeared on, June 29, 2013.

Lawyers for traditional marriage today filed an emergency application with Justice Anthony Kennedy at the Supreme Court, asking him to order that California officials not commence gay marriages unless and until they have the lawful power to do so. California has jumped to resume what is still illegal activity--which is how the controversy started in California in 2004.

Alliance Defending Freedom (ADF)--the legal organization representing California's Proposition 8 supporters--went back to the Supreme Court on Saturday, filing anemergency application with the justice who became the fifth vote to strike down part of the federal Defense of Marriage Act (DOMA), this time asking for Kennedy to restore the rule of law on the California Prop 8 case.

When the Supreme Court grants a writ of certiorari to take a case, lower courts no longer keep any jurisdiction to act upon the case until the Supreme Court acts first. Last year the lower court in this case--the U.S. Court of Appeals for the Ninth Circuit--affirmed a federal district court opinion striking down Prop 8 as unconstitutional. The Ninth Circuit then took the ordinary step of placing a stay on its decision until the Supreme Court decided whether to take the case, and if so, then after the Supreme Court ruled on the case.

In the wake of the Supreme Court's 5-4 ruling this week in Hollingsworth v. Perry that both the Supreme Court and the Ninth Circuit never had jurisdiction in the case, the Ninth Circuit on Friday issued an order lifting the stay. Gay marriages began within minutes.

But it seems the Ninth Circuit does not yet have the legal power to lift the stay. A Supreme Court decision does not carry force of law until that judgment is issued in the form of a certified copy of the Court's order and opinion to the lower court.

That happens 25 days after the decision is handed down, unless it's an emergency and the Court expressly orders something different. The delay is deliberate, as it gives the losing party time to file a petition for rehearing with the Supreme Court, or raise other post-decision matters that Supreme Court rules allow.

On June 26, just hours after the Court handed down its decision in Hollingsworth, William K. Suter, the Clerk of the Supreme Court, transmitted a letter to the Ninth Circuit. All lawyers associated with the case received a copy of that letter from the Ninth Circuit at 2:54pm. That letter specifically informs the Ninth Circuit that:

The judgment or mandate of this [Supreme] Court will not issue for at least twenty-five days pursuant to [Supreme Court] Rule 45. Should a petition for rehearing be filed timely, the judgment or mandate will be further stayed pending this Court's action on the petition for rehearing.

Despite the Ninth Circuit having been explicitly informed by the Supreme Court that the higher court had not yet issued its order, and that at least 25 days would pass before such an order would be received, and all lawyers on both sides of the case were likewise informed, the Ninth Circuit dissolved its stay of the district court's decision striking down Prop 8, and gay marriages began literally within minutes.

The Ninth Circuit took that action at 3:23pm California time on June 28. Despite being legally bound to adhere to the formal rule of law, California Attorney General Kamala Harris tweeted just twelve minutes later--at 3:35pm--that she was on her way to San Francisco City Hall to marry the plaintiffs in the Prop 8 case.

It is also worth noting that this tweet came four minutes before even the AP sent out a tweet, making some wonder how Harris could have responded so quickly. It also seems interesting that the plaintiffs were standing by to get married less than one hour later (at 4:15pm), since their lawyers should have told them that marriage should not have been legally possible for another three weeks at least. Their incredibly quick actions are leading some to wonder if someone improperly had advance knowledge of what the appeals court was going to do.

It all also serves as a reminder that ignoring the rule of law is how the controversy began in the first place. Back in 2004, San Francisco Mayor Gavin Newsom (who is now California's lieutenant governor) performed gay marriages at City Hall and issued marriage licenses, despite the fact that it they were blatantly and undoubtedly illegal under California Law at the time.

Then, when the California Supreme Court struck down California's traditional marriage law in 2008, they again started performing gay marriages immediately before people could respond--as they did just weeks later when the voters passed Prop 8 to put a defense of traditional marriage in the California Constitution.

Then when the plaintiffs in this case sued California to argue that Prop 8 violates the U.S. Constitution, the California governor and attorney general violated their oaths of office by refusing to defend their own California Constitution.

The lawsuit is not yet over. Yet once again public officials are violating their oaths of office to collaborate with gay-marriage activists to force this issue, seemingly trying to create the impression that this train has left the station and there's no going back to traditional marriage.

This may be a preview of coming attractions as the conflict over gay marriage moves to the next level nationally, one that will likely focus on state sovereignty, parental rights, and religious liberty.

All eyes are on Justice Kennedy to see what he does with this emergency application. And all eyes will likely remain on him as these other issues work through the court system in the next few years.