See the update at the end of this post where the California Supreme Court denies the request for an emergency order to stop same-sex marriages although it is still entertaining a case seeking to enforce Prop 8.
ORIGINAL POST, JULY 12, 12:52 P.M.: Remember how Chapman University law professor John Eastman said Prop 8 is law again in California with the U.S. Supreme Court rulings on the voter initiative and Defense of Marriage Act–despite many other legal scholars saying the opposite? The original backers of Prop 8 are essentially using Eastman's contention to try to immediately stop same-sex weddings in the Golden State.
The opponents of marriage equality actually launced a two-pronged attack today aimed at convincing the California Supreme Court to order county clerks to deny marriage licenses to gay and lesbian couples.
First, the group claims state officials have no legal authority to force county clerks to issue marriage licenses to same-sex couples in the first place.
The Eastman bit concerns the argument that the 2008 ballot measure banning gay marriage in the state remains in force because the U.S. Supreme Court tossed out the Prop 8 case on a legal technicality rather than ruling directly on the constitutionality of marriage bans.
Eastman, a constitutional law prof at Chapman and unsuccessful candidate for the GOP nomination in California's last attorney general's race, had filed amicus briefs with the high court in support of Prop 8.
His reasoning for claiming Prop 8 is law again in California was the Supremes ruled in DOMA that federal benefits cannot be withheld from same-sex couples in states that allow such unions. The court did not address the constitutionality of bans on gay marriage, leaving that question up to each state.
California voters approved Prop 8, and the Supremes did not rule on its constitutionality but instead found those who appealed a federal judge's ruling that the initiative is unconstitutional lacked the legal standing to do so, because the original case was filed against state officials and not the H8ers.
UPDATE, JULY 15, 5:13 P.M.: The California Supreme Court today denied a request from Prop 8 backers who sought an emergency order Friday to stop same-sex marriages while the issue is being rehashed in Golden State courts yet again.
The high court also asked for additional written arguments by Aug. 1 on such questions as whether the California governor and attorney general should have defended Prop 8 in federal court and whether overturning the ban on same-sex marriages applies statewide or only to Alameda and Los Angeles counties where the original challenges were filed.