Prop 8 supporters can appeal

Posted on 17 Nov 2011 at 1:20pm

David Boies, one of the attorneys that won a ruling against Prop 8 in district court

The California Supreme Court today issued an advisory ruling indicating that ProtectMarriage.com does have standing to appeal a trial court ruling that Proposition 8, the 2008 amendment to the state’s constitution that banned same-sex marriage.

The Supreme Court issued the decision after being asked to do so earlier this year by the 9th Circuit Court of Appeals. The Supreme Court’s opinion is an advisory ruling only, which means that the appellate court is not bound by its findings. The 9th Circuit judges, however, have previously indicated they would follow the Supreme Court’s decision.

Prop 8, approved by California voters the same year that Barack Obama was elected president, was ruled unconstitutional in the summer of 2010 by District Judge Vaughn Walker, who has since retired. The amendment was defended in court by ProtectMarriage.com, the primary backer of the Prop 8 referendum, after California Attorney General Jerry Brown refused to defend it in court. Gov. Arnold Schwarzenegger also failed to defend the amendment in court.

When ProtectMarriage.com appealed Walker’s ruling to the appellate court, the three-judge panel chosen to hear the case heard oral arguments in early December 2010 and a month later asked the state Supreme Court to weigh in on the question of standing.

In its ruling issued today, the Supreme Court wrote:

“In response to the question submitted by the Ninth Circuit, we conclude, for the reasons discussed above, that when the public officials who ordinarily defend a challenged state law or appeal a judgment invalidating the law decline to do so, under article II, section 8 of the California Constitution and the relevant provisions of the Elections Code, the official proponents of a voter-approved initiative measure are authorized to assert the state’s interest in the initiative’s validity, enabling the proponents to defend the constitutionality of the initiative and to appeal a judgment invalidating the initiative. …”

Now the wait begins to see if the 9th Circuit abides by the Supreme Court’s ruling on standing, and how the appellate court will rule on the merits of the case. Regardless of the outcome, the case is likely to be appealed again, first to the full 9th Circuit, and then to the U.S. Supreme Court.

Since Prop 8 was voted on in 2008, more than twice as many people are covered by marriage equality laws in the United States. New York legalized same-sex marriage in June, 2011. Several states including Illinois have new domestic partnership laws and several countries have also recognized marriages between gay and lesbian couples.

 

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