SAN FRANCISCO — The California Supreme Court on Wednesday issued notice that it will rule Thursday whether proponents of California’s Proposition 8 have “legal standing” to defend the 2008 voter-approved law ban on same-sex marriage.
The decision by the court will determine next steps in the U.S. Ninth Circuit federal appeals court, where the law — declared unconstitutional by a federal judge — is now on appeal.
The complicated question, in simple form, is this: If state legal officers, elected by the people, decide not to appeal a federal district court decision, can some other entity represent the people in defending a law approved by a majority of voters?
Legal analysts and court observers are saying that based on the justices’ questions during oral arguments this past September, it appeared likely the state’s high court would permit the “Yes on 8” legal team to defend the ban.
The Supreme Court is addressing the narrow question of whether Proposition 8 sponsors have a right to appeal a federal judge’s ruling declaring the law unconstitutional when the governor and attorney general refuse to do so.
The 9th U.S. Circuit Court of Appeals asked the state’s high court to rule on that issue before addressing the central questions in the legal challenge to the same-sex marriage ban.
With the matter under review in the Supreme Court, the 9th Circuit put off ruling on an appeal of former Chief U.S. District Judge Vaughn Walker‘s August 2010 decision declaring Proposition 8 unconstitutional because it violates the equal rights of gay and lesbian couples.
If the Supreme Court gives Proposition 8 backers so-called “standing” to appeal Walker’s ruling, the case will return to the 9th Circuit.
A Supreme Court decision that finds Proposition 8’s sponsors cannot defend a state law on their own could spell the end to the case and pave the way for same-sex marriages to resume in California.
Ted Olson, the famed attorney representing the interests of same-sex couples in the case, Perry v. Brown (formerly Perry v. Schwarzenegger), argued no, “there is nothing” in the California constitution or laws that permit Yes on 8 to appeal when the government decides not to.
Olson said that to grant Yes on 8 standing to appeal a decision that the state elected officers decided not to appeal amounts to the court amending the state constitution.
The ruling is expected at around 10 a.m. PST.