The California Supreme Court agreed Wednesday to decide whether Proposition 8 proponents have the legal right to defend the voter-approved ban on same-sex marriage in lieu of the governor and state's attorney general.
The Court justices made the decision yesterday in a closed-door conference. The 9th U.S. Circuit Court of Appeals had asked the state's Supreme Court to decide on the issue last month, saying that it would not do so on its own.
The 2008 proposition, which defined marriage as a union between a man and a woman in the state's constitution, was approved by 52 percent of California voters.
However, U.S. District Judge Vaughn Walker ruled last year that the amendment was unconstitutional, saying that moral disapproval alone is an improper basis on which to deny rights to gay men and women.
ProtectMarriage.com, a website created by amendment supporters, showed a message urging Gov. Arnold Schwarzenegger and former Attorney General Jerry Brown to appeal the ruling. However, neither official stepped forward to defend the voter-approved law in court. Nonetheless, proponents continued with the appeal.
The 9th Circuit Court began hearing arguments in the repeal trial in December 2010. Throughout the trial, the proponents' attorney Charles Cooper struggled to establish standing. The panel of three justices asked if Cooper tried to compel the state attorney general to take the case, or to give proponents standing to proceed with an appeal. Cooper replied that he did not. However, he urged the court to consider previous precedents when state officials refused to defend a voter-approved amendment.
In the order asking the state's Supreme Court to review the legal standing issue, the 9th Circuit wrote, "Although the governor has chosen not to defend Proposition 8 in these proceedings, it is not clear whether he may, consistent with the California Constitution, achieve through a refusal to litigate what he may not do directly: effectively veto the initiative by refusing to defend or appeal a judgment invalidating it."
If the Supreme Court finds that Proposition 8 supporters do not have legal standing to defend the amendment, the 9th Circuit has indicated that it will likely decide not to return a decision in the case. However, if the Supreme Court rules that Proposition 8 advocates can defend the law on their own, the case would return to the 9th Circuit, where the judges would then be in a position to resolve the legality of Proposition 8.
Jim Campbell, an Alliance Defense Fund legal counsel, believes that Protectmarriage.com should be able to defend the measure.
"Politicians should not be able to nullify a democratic act of the people by refusing their duty to defend it," he said in a January statement. "The people of California have the right to be defended, and thus the official proponents of Proposition 8 must have standing to defend that law."
The state Supreme Court will likely decide the issue of standing by the end of this year.
This will be the fourth time in the past seven years that California's Supreme Court has had to confront the issue of legalizing gay-marriage. In 2004, the court voided same-sex marriage licenses issued in San Francisco. And in May 2008, the Supreme Court of California legalized same-sex marriage with its ruling In re Marriage Cases.
Then on May 26, 2009, the California Supreme Court upheld Proposition 8 but did not void same-sex marriages that occurred between its ruling in June 2008 and the day after the November 4, 2008 election.