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Same-sex marriage: Can Prop. 8 sponsor appeal ruling ban is unconstitutional?

In a hearing Tuesday, California Supreme Court justices grilled attorneys for both sides in the Prop. 8 case. Their ruling on legal 'standing' may affect more than the ban on same-sex marriage.

By Daniel B. WoodStaff writer / September 6, 2011

Gov. Arnold Schwarzenegger seen at the Capitol in Sacramento, Calif., Friday, Oct. 8, 2010. Both Schwarzenegger and then-Attorney General Jerry Brown declined to appeal the unconstitutionality of Prop. 8 in 2010.

Rich Pedroncelli/AP/File

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Los Angeles

The California Supreme Court heard oral arguments Tuesday on whether or not the sponsors of Proposition 8 – a ban on same-sex marriage that was passed by voters in 2008 before being struck down as unconstitutional a year ago in federal court – have the legal “standing” to appeal the ruling.

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Observers said the justices’ questioning of attorneys for both sides was especially difficult, leading some advocates of same-sex marriage to believe the justices were leaning toward granting the Prop. 8 sponsor, ProtectMarriage, the standing it sought.

But the state Supreme Court ruling in the case, which the 9th US Circuit Court of Appeals requested to assist in its own deliberations, may do more than help determine the fate of Prop. 8. It could help clarify whether or not sponsors of other ballot initiatives are entitled to defend their measures in state court when state officials refuse to do so.

This case came up because then-Gov. Arnold Schwarzenegger and then-Attorney General Jerry Brown both declined to appeal when US District Chief Judge Vaughn R. Walker found the law unconstitutional in August 2010.

“The issue of who has legal standing to argue a case is about as arcane, technical and procedural as it gets and something that is very difficult for the general public to understand,” says Laurie Levenson, professor of law at Loyola Law School. However, she and others point out, it could effect whether or not the Prop. 8 case goes to the US Supreme Court, and what happens to other citizens initiatives that are challenged in court.

Several legal analysts say the issue needs clarification because it comes up all the time.

Courtney Joslin, acting professor of law at UC Davis, says the US Supreme Court has never directly decided whether the official proponents of an initiative necessarily have standing to defend a measure if no public official is willing to do so.

Chris Dusseault, a law partner at the firm of Gibson, Dunn and Crutcher who attended the hearing, says he was impressed with how well prepared the California justices were, including Goodwin Liu, who was appointed just last week by Gov. Jerry Brown.

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