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Prop. 8 proponents answer objections to clerks enforcing constitution, rule of law

Brief filed with Calif. Supreme Court says clerks should enforce marriage amendment

SAN FRANCISCO — Alliance Defending Freedom representing the proponents of Proposition 8 filed a brief with the California Supreme Court Thursday that responds to the arguments of the California attorney general and others who oppose the ongoing enforcement of the state’s voter-approved marriage amendment.

“Everyone on all sides of the marriage debate should agree that the legal process must be followed,” said Senior Counsel Austin R. Nimocks. “The U.S. Supreme Court did not rule on the constitutionality of Proposition 8, and the remaining federal district court order does not apply statewide. The California Constitution therefore requires public officials to continue enforcing the marriage amendment.”

The reply brief filed in Hollingsworth v. O’Connell demonstrates that the federal district court’s 2010 injunction does not bind all county clerks.

The brief explains that the Attorney General is asking the California Supreme Court to “eviscerate an initiative of its primary force, and imbue public officials with authority to override any future initiative by first declining to defend it in court and then declining to appeal a trial court decision invalidating it. The Attorney General, in other words, wants this Court to grant her office, and the offices of all other public officials, a newfound power to cripple state initiatives with which they disagree. To fulfill its obligation to jealously guard state initiatives, this Court should…decline the Attorney General’s invitation to elevate public officials above the sovereign People that they serve.”

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.

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.

Alliance Defending Freedom attorneys filed the brief together with Andrew P. Pugno, general counsel for, the banner organization for the official proponents and campaign committee of Proposition 8.

  • Pronunciation guide: Nimocks (NIM’-ucks), Pugno (POON’-yoh)


Alliance Defending Freedom is an alliance-building, non-profit legal organization that advocates for the right of people to freely live out their faith.


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