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California Supreme Court: Prop 8 proponents can defend gay marriage ban

The Earl Warren Building in San Francisco, home to the California Supreme Court.

The Earl Warren Building in San Francisco, home to the California Supreme Court.

SAN FRANCISCO — In a unanimous ruling Thursday, the California Supreme Court said that Proposition 8 sponsors have the legal right to defend the state’s ban on same sex marriage.

Proponents of Prop 8’s legal team had argued that the supporters of the voter approved ballot initiative should be able to appeal retired U.S. District Court Judge Vaughn Walker‘s ruling last year, which struck down the same-sex marriage ban as unconstitutional.

The Earl Warren Building in San Francisco, home to the California Supreme Court.

Former Governor Arnold Schwarzenegger(R) and former attorney general, now the current Governor, Jerry Brown (D), agreed with Walker’s ruling and have refused to defend the law in court.

The Supreme Court was emphatic that it would “undermine” the California ballot initiative process if the Governor and Attorney General can trump the voters by declining to defend such laws in the courts.

“The inability of the official proponents of an initiative measure to appeal a trial court judgment invalidating the measure, when the public officials who ordinarily would file such an appeal decline to do so, would significantly undermine the initiative power,” Chief Justice Tani Cantil-Sakauye wrote for the court.

The federal 9th U.S. Circuit Court of Appeals had triggered the state High Court’s intervention earlier this year, by asking the California Supreme Court to decide whether sponsors of the state ballot measures such as Proposition 8 have legal “standing” under California law to defend those laws when top state officials abandon a case.

With that issue unresolved, the 9th Circuit put on hold its review of Walker’s August 2010 ruling that found Proposition 8 unconstitutional because it violates the equal protection rights of gay and lesbian couples. The ruling today from the California High Court now puts the federal appellate court in the position to move forward and decide the merits of the legal challenge to Proposition 8.

Two same sex couples had sued to overturn the law, hoping to eventually push the controversial issue to the U.S. Supreme Court.

The federal appeals court must now resolve the legal question of whether Proposition 8 sponsors have standing under federal court rules to press the appeal, but legal analysts have predicted the court would allow the case to proceed if same-sex marriage opponents had secured a favourable ruling from the California Supreme Court.

In a hearing earlier this year, the panel of 9th Circuit judges hearing the case indicated they were troubled by the possibility that a governor and attorney general could undermine a voter-approved law simply by refusing to defend it in court.

With this decision, the 9th Circuit would be in a position to rule on the Prop 8 action swiftly, as legal briefs and arguments have already been made by both the defence and the plaintiffs.

The 9th Circuit Court has one additional issue to resolve, as Proposition 8 backers have raised new arguments that Judge Walker’s ruling should be set aside because he had been in a long-term same sex relationship at the time he held last year’s historic trial in the case and therefore is presumed biased.

Chief U.S. District Judge James Ware rejected that argument earlier this year, but Proposition 8 lawyers have appealed that ruling to the 9th Circuit.

Read the decision here (PDF).

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