SAN FRANCISCO (AP) — California’s same-sex marriage ban faces its next legal test Tuesday when the state’s highest court attempts to shed light on whether the voter-approved measure’s backers have legal authority to appeal the federal ruling that overturned Proposition 8.

The California Supreme Court is scheduled to hear an hour of arguments on that question, which could prove crucial to the future of the voter-approved ban. The federal appeals court that is considering the initiative’s constitutionality wants the state court to weigh in on the matter before it issues its decision.

The 9th U.S. Circuit Court of Appeals has expressed doubts about the ability of Proposition 8’s sponsors to challenge the lower court ruling absent the involvement of California’s governor or attorney general, both of whom refused to appeal a federal judge’s August 2010 decision striking down the ban as a violation of gay Californians’ civil rights.

The court punted the question to the California Supreme Court earlier this year, saying it was a matter of state law.

Lawyers for the coalition of religious and conservative groups that qualified Proposition 8 for the November 2008 ballot maintain they are legally eligible to represent the majority of California voters who approved the same-sex marriage ban. They argue that because California has such a vigorous citizen’s initiative process, it would not make sense for elected officials to effectively veto measures by not defending them in court.

“This is a pivotal hearing for us as we continue to fight to uphold the People’s vote to restore traditional marriage in California against these ferocious attacks,” Andy Pugno, legal counsel for the Proposition 8 coalition said in a letter to supporters last week. “We simply cannot allow our opponents to manipulate the legal system to the point where there is nobody left to defend the People!”

Lawyers for the two same-sex couples who successfully sued to have Proposition 8 thrown out are arguing that ballot initiative proponents cannot demonstrate that would be uniquely harmed if the same-sex marriage ban is declared unconstitutional. Demonstrating a concrete and particularized harm is the standard parties ordinarily have to meet to be eligible to wage an appeal in federal court.

California Attorney General Kamala Harris has submitted a brief saying that in her interpretation, proponents of successful ballot initiatives do not have the right to defend their measures in court. Harris is a Democrat who succeeded Gov. Jerry Brown in January as attorney general.

If the Supreme Court says the ban’s proponents did not have standing to appeal, and if the 9th Circuit and ultimately the U.S. Supreme Court ultimately agree, it would clear the way for same-sex marriages to resume in California because former Chief U.S. Vaughn Walker’s verdict would stand. But such an outcome would also limit the potential impact of the closely watched catch because it would prevent higher courts from reaching its constitutional merits.

“What the court has before it are questions about how the state’s direct democracy rules should be understood to sync with its constitutionally-based ideas of representative government,” Ohio State University Moritz College of Law Marc Spindelman. “Who speaks for the people and the state – and when? Can unelected officials determine how state law will be defended? Should they be allowed to defend the law when state officials elected by the people to represent them will not? Are state officials who refuse to defend a legal measure on appeal practically exercising a veto right that the rules of direct democracy in California do not allow?

Proposition 8 reinstated a ban on same-sex marriages in California by amending the state Constitution to supersede a California Supreme Court ruling that had legalized gay unions five months earlier. The Williams Institute, a think tank on sexual orientation and the law at the University of California, Los Angeles, has estimated that 18,000 couples tied the knot during the brief window.

(Copyright 2011 by The Associated Press. All Rights Reserved.)

Comments (13)
  1. Joseph says:

    It doesn’t pay to pass a voter initiated laws in Looneyfornia these days because
    the libby’s take it to court and the no nothing about the constitution judges will
    overturn the will of the people in a heart beat. What’s next ? Revolution!!!

    1. Justme81 says:

      the will of the people? are you kidding me? really the will of the people? the will of the people said blacks had to drink from colored water fountains had to go to schools sub standard. So bc you dont like how ppl have sex they can be treated differantly by the law? So if i passed a law with the will of the people that said all republians votes counted as a quarter vote you would be ok with that? bc the will of the people said its ok? there is where your argument fails bc you only really care for the will of the people when it suits your agenda. I love how you people can say such things when you really only would defend that thinking when it something you agree with. Sometime the will of the people is FLAT WRONG and it takes Judges and lawsuits to force the people to do what right. just bc you personally dont like something does NOT mean you get to pass laws about it with exceptions of course But if I dont like a group your saying that if I get enough support and get it passed the courts have no say?

      1. grapevine says:

        so lets have a horse and a woman marry next marriage is defined by God if you don’t like it take your cause up with God, you are here because of we the people or we would be speaking German or British, so get a life jack a$$

  2. Gryphon says:

    I cannot understand why anyone would so frightened of two people who love each wanting to get married. This is especially so as marriage does not come under the auspices of any religion. It is a business contract; a partnership.

    No one can be married without filing the proper paperwork with the local government in which those persons reside. This is a right that is given to every person in the State. In order to dissolve the marriage, the persons need to get the approval of the Judiciary of that particular jurisdiction. No religious organization has any legal say in the dissolutionment process.

    Religion can come into the overall process through the rights granted to them by the State to perform a marriage ceremony. This is the only involvement by religion. And this is a very good thing as we can see from the fomenting of fear by Christian zealots who want to dictate who may love who. Also the zealot’s need to make everyone conform to their religious beliefs.

    Gratefully, the State of California has denied the hate mongering and will not support the absurd premises of Proposition 8.

    1. ChristainAndProud says:

      Why do you want to be part of a “Religion” you obviously do not like? Gay partners have all the legal rights as married couples in the State of California. You want to change the definition of a word/belief to make you feel better about yourselves. Why do you feel so bad about yourselves? Could it be the sin on your heart? By forcing others to except you will only make people that hate you hate you more. I am a Christian and believe in the bible and what it teaches. You will never change my mind and I really do not care what you do. I pray for your soul, but not harm to you. Why must you hate my beliefs. Why must you call me names. There are a lot of extreme Gay groups out there. NBLA is one. So should I say all Gays are pedophiles, since you call all Religious people Zealot’s. It just shows how wrong and immature the Gay community is and why the majority is against you on this one.

    2. grapevine says:

      listen here jacka$$, its we the people, or you would be speaking german right now, or Japanese right now. next you want to define marriage with a woman and a horse where do you draw the line. Marriage is defined by God, God’s in the spot you can like it or not, take your issue up with him, you gay zealot

  3. The Time Is Now...... says:

    What is the problem here???

    All Gay’s have rights and deserve to be able to marry one another.

    Really, do you care who they love??? Who sleeps in their beds??? Do your really care??? If so, then maybe you’re the one with the problem… Now, that’s sick…. I don’t want to see who is in your bedroom… I could care less…. I only care about my life and my family. And if one of my children came to me and told me that he or she is gay, I would hug them and just tell them to be happy. Be yourself…. And don’t be afraid of what others think.

    I look at it this way,

    God must have created Homosexuals to help curb the population growth. He is a loving God, and loves all of his children. He created each and everyone of you for a purpose. And to Hate, is not one of the purposes…

    This should not even be an issue….

    When are people going to wake up and quit fighting among one another…???

    You don’t have to embrace it….. Just acknowledge that it is just the way it is…..

    The are not going to become “straight”, just because you do not approve…. They can not become straight, anymore than you can become gay….. Look at it that way……

    We are now in the 21st. Century….. It’s about time that we act like we belong in the 21st Century…..

    Don’t you think???

    If you have any type of intelegence in your brain, then you have to agree…. Otherwise, you are still an uneducated fool, and need to be given the proper tools to educate yourself…..

  4. Imposter says:

    Very well said Gryphon!

  5. Liermann says:

    Tick tock, tick tock: Do you hear that? I do – it is the sound of time running out on the ban on gay marraige in California.

    It’s only a matter of time before gay marraige is once again legal in California. So, how many millions of dollars do you Prop H8ters have to waste before you get the point? How many legal walls do you Prop H8ters have to run in to before you get the point? Don’t you think there’s a better cause to throw your energy in to?

    What will you tell your future generations about your losing role in Prop H8te? How sad and embarrassing it will be for your children to learn that you were on the losing side of blatant hatred and discrimination. Or perhaps you’ll fall on the religious sword and quip about being true to your god and his teachings.

    Either way, I’ll just skip gayly down the road, holding the hand of my wife because it is only a matter of time before Prop H8te is a pipe dream of the past.

  6. grapevine says:

    no more we the people, it is we the judge only, so I make a motion to pull obama out as president because he was voted in so lets find a judge who don’t like obama and pull his ass out.

  7. Lisa says:

    The people have spoken. No fruitcake marriage.

  8. Marty says:

    Apparently, some people are so closed minded and intolerant that they think that change is bad. Just because the people voted for Prop 8 doesn’t mean they were right. Religion and politics don’t mix. People can have their religious beliefs, but there is such a thing as a “separation of church and state”. If Christian fundamentalists wanted to protect the sanctity of marriage, they would need to ban civil marriage, common law marriage, separation, divorce, interracial and interfaith marriages.

    The US was founded on the belief that all men are created equal. Then we need to act like it. This is 2011, not 1955.

  9. Rebecka says:

    I’ll say it again homosexuals want to destroy Gods Christianity. They want to destroy his word and insert their beliefs to suit their lifestyle, gays want vengence against God for calling them an abomination, revenge is what they want, they are using “love” as a front to get even with GOD, they want abomination of their chosen lifestyle removed from the Bible. Watch which legislaters actually believe that this is one nation under God watch and listen to the ones who really believe the word of God. Keep your eyes open and your ears listening, should be interesting.

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