by Rex Wockner
INTERNATIONAL NEWS
A huge new delay was introduced into the federal case against California's Proposition 8 on Feb. 16.
The case is before the 9th U.S. Circuit Court of Appeals, which, after hearing oral arguments in December, punted off a question to the California Supreme Court.
The California Supreme Court now has decided, unanimously, that it will indeed answer the question and has set up a briefing schedule, to be followed by oral arguments no sooner than September.
The 9th Circuit asked the California Supreme Court if the people who put Proposition 8 on the ballot have any legal right, under California law, to be in court arguing to overturn last summer's federal District Court ruling that struck down Proposition 8 as a violation of the U.S. Constitution.
Those proponents, ProtectMarriage.com, want to defend Proposition 8 because California's governor and attorney general and everyone else who was sued in the federal Proposition 8 case have refused to defend the constitutional amendment that, in 2008, re-banned same-sex marriage in the nation's most populous state.
The 9th Circuit decided it couldn't proceed with the case without hearing the California Supreme Court's opinion on ProtectMarriage's state-level right to defend Prop 8, which the 9th Circuit could then take under consideration in deciding whether to grant ProtectMarriage federal "standing" to appeal.
If ProtectMarriage is found to have no standing, then the case has no proper appellants and the 9th Circuit won't hear the appeal. Should that happen, the most likely outcome would be that the District Court ruling that struck down Proposition 8 would take effect, and gay couples in California would be able to get married again — although the "standing" question itself could end up being appealed by ProtectMarriage to the U.S. Supreme Court.
The question the California Supreme Court will answer, as asked by the 9th Circuit, is: "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."
Shannon Minter, legal director of the National Center for Lesbian Rights, expressed annoyance at the new, lengthy delay in the case.
"For same-sex couples waiting to marry, and for all LGBT Californians waiting to be treated as equal citizens, the knowledge that they must endure further delay is incredibly painful and frustrating," Minter said. "Prop 8 should never have been permitted on the ballot. The rights of a minority should never be put to a popular vote. Prop 8 was a toxic, anti-democratic measure that continues to wreak havoc in the lives of real people and families. The court should move as quickly as possible to resolve this issue. It is clear that California law does not give initiative proponents the power to override elected state officials who have decided not to appeal a federal court decision holding that a challenged state law is unconstitutional. The California Supreme Court should rule accordingly, and the 9th Circuit should affirm Judge Walker's ruling. Prop 8 is blatantly unconstitutional, and it is past time for it to be gone."
