Same-sex couples have been getting marriage licenses in California since late last month, ever since Attorney General Kamala Harris directed county clerks to issue the permits in response to a U.S. Supreme Court ruling.
But San Diego County Clerk Ernest Dronenburg says Harris doesn't have the authority to direct him to issue marriage licenses to same-sex couples. As he sees it, the federal court decision striking down Prop 8 as unconstitutional applies only to Alameda and Los Angeles counties, home to the two couples who challenged the law.
He wants the California Supreme Court to order him and other county clerks to stop issuing licenses to same-sex couples. What he seeks is clarity in a confusing legal landscape.
"I'm marrying people right now out of the faith that I've got to do what they said to do, but I don't have the surety in my mind that I'm doing it legally," Dronenburg said Monday. "All I want is for the court to tell me it's legal."
Although the Freedom of Conscience Defense Fund attorney who filed the case on his behalf supports Proposition 8, Dronenburg says he is not taking sides on the issue.
Attorney General Kamala Harris has threatened to take legal action against Dronenburg or other county clerks who refuse to provide marriage licenses to same-sex couples.
The state Supreme Court could issue a ruling on the San Diego clerk's request within the week. Until then, San Diego continues to issue licenses.
Dronenburg's case, which names Harris and Gov. Jerry Brown, is separate from a petition filed a week ago in the case known as Hollingsworth v. O'Connell, which raises similar questions about whether county clerks must issue marriage licenses.
In the Hollingsworth case, 20 clerks from counties in Northern California jointly asserted Monday that Harris does have the authority to direct them.
In Los Angeles County, nothing has changed. The clerk's office says it continues to issue marriage permits to couples of any gender and is not taking any action in response to the San Diego petition.