Even as dozens of same-sex couples lined up for marriage licenses on Monday, Proposition 8 supporters vowed not to go down without a fight, though they suffered their latest defeat Sunday before the U.S. Supreme Court. That's when Justice Anthony Kennedy rejected an emergency motion to halt same-sex marriages in California
The most immediate option being considered is to file a “petition for rehearing” with the Supreme Court. The only problem: Those petitions are almost never granted.
So what else?
“I think there could be action in the federal courts,” said Jordan Lawrence, senior counsel at the Alliance for Defending Freedom, the main defenders of Proposition 8. “There could be action in the state courts.”
The first thing you see when you go to the Alliance’s website is a graphic that says: “Prop 8: To be continued …”
“The final decision has not been made yet whether this is over or not,” said Lawrence.
He believes it’s not over, at least in most of California. Lawrence argues the Supreme Court’s ruling can only be enforced in the two counties that were parties to the 2010 District Court case: Los Angeles and Alameda.
“The rest of them are supposed to be obeying Proposition 8, which is still part of the state constitution,” said Lawrence.
Harris: 'I’m absolutely certain that our analysis in this is correct'
For her part, California Attorney General Kamala Harris says the 2010 trial court ruling is explicit in stating that it applies to the whole state.
She also cites state and federal case law that says county officials – in this case the clerks who marry people – have to carry out the will of state officials.
“I’m absolutely certain that our analysis in this is correct, which is that each of the 58 counties in California has to follow the ruling of [District Court[ Judge [Vaughn] Walker, which is that this is unconstitutional, and you are enjoined from following Prop 8,” Harris said last week at a press conference, soon after the Supreme Court dismissed the case.
Another problem for defenders of the ban on gay marriage is the high court’s reasoning. It ruled that those defenders lacked standing, which in the words of Chief Justice John Roberts would require them to have "suffered a concrete and particularized injury.”
Same-sex marriage supporters taking nothing for granted
“We think this issue is now done,” said Theodore J. Boutrous Jr., one of the lead lawyers for the same-sex couples who fought to overturn Proposition 8. “We think it’s not legitimate for the opponents of marriage equality to interfere with the rights of other people. We’re hopeful they will just pack it in at this point.”
But Boutrous has been at this long enough to know that could be wishful thinking. He says he takes nothing for granted, and wants to be ready for whatever same-sex marriage opponents decide to do next.