Prop. 8 delay: California court will decide if gay-marriage foes can appeal

The California Supreme Court will answer a sticky legal question: Can the opponents of gay marriage who backed Prop. 8 defend it in court? Oral arguments won't start before September.

Jeff Chiu/AP/File
Plaintiffs Jeffrey Zarrillo (l.) and Paul Katami stand outside the Ninth Circuit Court of Appeals in San Francisco on Dec. 6, 2010. At the request of the Ninth Circuit, the California Supreme Court will clarify a key issue in the appeal of Prop. 8, California's voter-approved gay marriage ban.

The latest question in California’s ongoing legal battle over same-sex marriage is now in the hands of the California Supreme Court.

California’s highest court announced Wednesday it would decide if the original sponsors of Proposition 8 – which banned same-sex marriage in California in 2008, then was subsequently overturned in federal court – have the legal standing to defend the measure.

The issue arises because the state of California declined to appeal the ruling of Chief US District Judge Vaughn Walker that the initiative violated the 14th Amendment of the US Constitution. Prop. 8’s supporters then looked for someone else with the legal right to appeal. In the name of a deputy clerk from Imperial County and on behalf of their own organization, Protect Marriage eventually filed an appeal with the Ninth Circuit Court of Appeals.

In January, the Ninth Circuit asked California’s highest state court to answer a sticky legal question: Can Project Marriage speak for the state?

The California Supreme Court said Wednesday that it will take up the question, hearing oral arguments no earlier than September.

Lawyers for the two couples that had first challenged Prop. 8’s constitutionality argued before the Ninth Circuit that neither the clerk nor Protect Marriage have any right to speak for the state of California. They also noted that the US Supreme Court has ruled that the proponents of a ballot initiative in Arizona did not have standing to defend it in federal court.

Attorneys for Protect Marriage have argued that somebody had to speak for the voters, or else then-Gov. Arnold Schwarzenegger's decision not to appeal would effectively nullify voter will. They also suggest that California's laws give more legal authority to the proponents of a ballot initiative.

A three-judge panel of the Ninth Circuit ruled that the clerk does not have standing, but that the measure’s original backers might. That’s a matter of state law, they said, so they asked California’s highest court to answer the question for them.

The state Supreme Court has accelerated the normal appeals process “to expedite consideration and resolution of the issues in the matter and to accommodate oral argument as early as September 2011,” the court said in a statement.

The schedule asks all parties to submit their briefs by April, and other interested groups or individuals to file their amicus curiae briefs by early May.

If the California Supreme Court decides that Protect Marriage does have standing, the Ninth Circuit will rule on the central issue of the case: Do gay couples have a right to marry? Since the circuit court has authority over more than just California, the ruling would be legally binding in 11 states and territories, from Guam to Montana. A Ninth Circuit decision would also tee up the case for the US Supreme Court.

If the California Supreme Court decides that the group does not have standing, Judge Walker’s ruling will remain in place, lifting the stay that was put in place during the appeal and allowing gay weddings to proceed.

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