Can Prop. 8 Proponents Defend Measure? Calif. Supreme Court to Decide

The California Supreme Court will hear arguments Tuesday over whether Proposition 8 – the state's ban on same-sex marriage – can be defended by its proponents.

With California's governor and attorney general both having refused to defend Prop. 8, the high court was asked by the 9th U.S. Circuit Court of Appeals to decide on the legal standing of – the official proponents of the state amendment.

"Voters should not be left without any defense just because their officials refused to defend them,” said Austin R. Nimocks, senior legal counsel with the Alliance Defense Fund, in a statement. ADF attorneys are part of the legal team.

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“Because the people of California have a right to be defended, the official proponents of Proposition 8 need to be allowed to step in and defend California’s marriage amendment. Otherwise, state officials will succeed in indirectly invalidating a measure that they had no power to strike down directly.”

Prop. 8, which defines marriage as between a man and a woman, was passed by a majority of California voters in 2008. Last August, however, then Chief U.S. District Judge Walker struck down the measure as unconstitutional. He concluded that moral disapproval alone is an improper basis on which to deny rights to gay men and women.

Then Governor Arnold Schwarzenegger and former Attorney General Jerry Brown declined to appeal the ruling. stepped in to appeal. And the 9th Circuit Court began hearing arguments in December 2010.

But before the appeals court weighs the constitutionality of Prop. 8, the court has turned to the state supreme court on the question of's legal standing.

The high court is being asked to address this issue: "Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative’s validity or the authority to assert the State’s interest in the initiative’s validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.”

In other words, "ultimately, this hearing concerns whether the people of California who voted for Proposition 8 will be defended at all,” Nimocks explained.

The California Supreme Court legalized same-sex marriage in May 2008. Same-sex marriages came to a halt a few months later after the approval of Prop. 8 by voters. The high court upheld the amendment but did not void same-sex marriages that occurred between its 2008 ruling and the passage of Prop. 8.

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