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County clerk launches defense of Prop 8 traditional marriage

A newly elected county clerk in California says he has the answer to the question of “standing” being considered right now by the state Supreme Court in response to a query from the 9th U.S. Circuit Court of Appeals, which is considering Proposition 8 – the constitutional amendment that defines marriage as between one man and one woman only.

“I took an oath of office to uphold the California Constitution, and Prop 8 is part of the Constitution,” said Chuck Storey, the new county clerk for the County of Imperial, in a statement released by officials with the Advocates for Faith & Freedom.

The organization has been involved in the arguments over homosexual “marriage” since Proposition 22, a California law defining traditional marriage, was ignored by San Francisco Mayor Gavin Newsom in 2004 when he issued same-sex “marriage” licenses.

Vaughn Walker

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The dispute over “standing” is critical in the battle over the voter-approved definition of marriage as being between one man and one woman because the then-attorney general, Jerry Brown, who now is governor, and then-Gov. Arnold Schwarzenegger, both refused to fulfill their state office obligations and defend what now is one section of the state constitution.

Those who organized the petition through which voters adopted the definition have been working with a number of law firms in defense of the law, but the U.S. District Court judge, Vaugh Walker, an open homosexual, who struck down the law, raised the question about “standing.”

That would involve the question of exactly who has the right to mount a defense of the law, and Walker suggested that since the state, which is the defendant in the lawsuit, refused to provide a defense, the case essentially is finished.

That very question was raised when the 9th Circuit started considering the dispute, and judges there asked the state Supreme Court to decide whether those interested in the dispute, but not named as defendants, could provide a defense.

The state Supreme Court has not yet released its opinion on the question, but officials with Advocates for Faith & Freedom say in a motion to the 9th Circuit that the county clerk should have “standing” – no matter what the state Supreme Court would decide.

Rally on Prop 8

The organization’s motion to intervene on behalf of Storey brings a “new perspective” to the case, officials said.

“This is a very significant development,” said Robert Tyler, one of the Advocates’ lawyers who have been working on the issue. “Our filing now provides a party that we believe should unquestionably have legal standing to defend Prop 8.”

The legal team earlier had sought to intervene on behalf of a deputy clerk, but the 9th Circuit refused permission. The status of Storey as an elected official, Advocates said, should change that.

“The court did leave open the question as to whether a county clerk has sufficient standing,” Tyler said. “It certainly seems to indicate it believes the county clerk would be appropriate.”

“Twice the voters of California have voted to uphold Proposition 8 and defend marriages,” said Tyler, “and twice they have been challenged in the courts. We believe we have a government defendant who has a sufficient and compelling interest in defending Prop 8.”

“This case is not only important for influencing nationwide law regarding marriage,” added Jennifer Monk, associate general counsel for Advocates. “But it is also important for the people of California to have their vote respected.”

The California Supreme Court

It was Walker who inserted a barb in his opinion, which concluded, among other startling statements, “Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.”

He noted the organization that assembled the ballot issue perhaps should be thrown out of the case. With that recommendation, the 9th Circuit panel promptly asked the state Supreme Court for a ruling on the issue of “standing.”

According to a statement from the Alliance Defense Fund, which has been working on behalf of Proposition 8’s supporters, that decision would, in effect, allow a politician to overrule the voters’ will on a constitutional amendment simply by refusing to do his or her job.

“Politicians should not be able to nullify a democratic act of the people by refusing their duty to defend it,” said ADF Litigation Counsel Jim Campbell. “The people of California have the right to be defended, and thus the official proponents of Proposition 8 must have standing to defend that law.

“Otherwise, the governor and attorney general will succeed in indirectly invalidating a measure that they had no power to strike down directly. With this recent development, the Alliance Defense Fund and the rest of the Protectmarriage.com legal team remain confident that the right of the people of California to protect marriage in their constitution will ultimately be honored,” he said.

Voters originally approved a state law defining marriage as one man and one woman back in 2000, only to see it undermined by the state legislature. In fact, the state Supreme Court only months before the 2008 election had struck the state law from the books, opening the door for same-sex “marriage.”

But the voters overturned that court decision in the 2008 election, and the dispute has resided in court files ever since.

Earlier, when the California Supremes created same-sex “marriage,” Justice Marvin Baxter was alarmed in his dissent.

“The bans on incestuous and polygamous marriages are ancient and deeprooted, and, as the majority suggests, they are supported by strong considerations of social policy,” Baxter warned. “Our society abhors such relationships, and the notion that our laws could not forever prohibit them seems preposterous. Yet here, the majority overturns, in abrupt fashion, an initiative statute confirming the equally deeprooted assumption that marriage is a union of partners of the opposite sex. The majority does so by relying on its own assessment of contemporary community values, and by inserting in our Constitution an expanded definition of the right to marry that contravenes express statutory law.

“Who can say that, in 10, 15 or 20 years, an activist court might not rely on the majority’s analysis to conclude, on the basis of a perceived evolution in community values, that the laws prohibiting polygamous and incestuous marriages were no longer constitutionally justified?” Baxter wrote.

That argument, in fact, is being made now in a court case in Canada, where the acknowledgement of “marriage rights” for same-sex duos is being cited as a reason to strike polygamy laws.

Those arguing officially on behalf of marriage are from ProtectMarriage.com, which was the group behind Proposition 8 when voters adopted it in 2008.

The ADF said the case has the potential to create “years of chaos and confusion in the legal battle to preserve marriage. It could impact marriage laws in up to 45 other states – including the … states where voters overwhelmingly adopted state constitutional amendments…”

The ADF report said also at stake is:

Traditional marriage advocates are trying to turn back the stunning conclusions of Walker, an open homosexual, who trashed the votes of more than seven million Californians in his decision.

His 136-page ruling said, “Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples.”

Walker also wrote:

Walker declared Prop 8 violates the rights of homosexuals under the federal Constitution.