For the second week in a row, Proposition 8 is in court and, next week, it’s right back where it started.
On Tuesday, September 6, the court is the California Supreme Court, and the question is whether there is any authority under California law that gives Yes on 8 the right to appeal a ruling that struck down the state ban on same-sex marriage when state officials decided not to.
Yes on 8 is the coalition of groups that organized the campaign to pass California’s ban on same-sex marriage in November 2008, ending six months of marriage equality in the nation’s most populous state.
The Proposition 8 initiative was Yes on 8’s reaction to a decision by the California Supreme Court in 2008 that held that the state constitution’s guarantee of equal protection.
Last Monday, August 29, the venue for the Proposition 8 litigation was the U.S. District Court in San Francisco, and the question was whether the court would release to the public videotapes of the landmark Proposition 8 trial — Perry v. Brown (formerly Perry v. Schwarzenegger). A decision in that matter is expected any day now.
Famed conservative attorney Ted Olson, who, along with famed liberal attorney David Boies, heads the legal team challenging Proposition 8, will argue that there is no authority under state law for Yes on 8 to appeal. Olson will argue that there is no authority to enable Yes on 8 to appeal when state officers decide not to, and that allowing Yes on 8 to appeal would “eviscerate” the Constitutional authority of the governor and attorney general.
Famed conservative attorney Charles Cooper, representing Yes on 8, will argue that the state constitution’s statement that “all political power is inherent in the people.” He will note that the California Supreme Court has already ruled, in an earlier phase of litigation, that Yes on 8 could defend Proposition 8 in court.
The California Supreme Court is involved once again in the Proposition 8 litigation thanks to a 9th Circuit U.S. Court of Appeals panel. The panel asked the state court to decide whether Yes on 8 has authority under any state law to appeal the August 2010 decision by U.S. District Court Chief Judge Vaughn Walker that found Proposition 8 unconstitutional.
The state supreme court’s answer to that question is expected to heavily influence the 9th Circuit panel in deciding whether Yes on 8 has legal “standing” to bring the appeal of Walker’s decision. If the 9th Circuit ultimately finds that Yes on 8 does not have standing, Walker’s decision will stand. While Walker’s decision would mean allowing same-sex couples to marry in California, it is more likely that Yes on 8 would appeal the question of standing to the full 9th Circuit and/or directly to the U.S. Supreme Court.
Tuesday’s argument begins at 1 p.m. Eastern Daylight Time and will be webcast live on the California Channel.
The seven-member California Supreme Court got its newest member just September 1, when it swore in liberal law professor Goodwin Liu. Liu withdrew his nomination to the 9th Circuit after being repeatedly blocked by Republicans, some of whom claimed he supports same-sex marriage.