The ongoing legal battle over California's ban on same-sex marriage can now get back to the main event.
Sidetracked for the past year by a critical but technical procedural question, the legal challenge to Proposition 8 was catapulted forward Thursday by a California Supreme Court ruling that allows a federal appeals court to decide once and for all whether the voter-approved law forbidding gay nuptials is constitutional.
In a unanimous ruling, California's high court handed supporters of Proposition 8 the legal right to defend the state's ban on same-sex marriage on their own. The justices emphatically embraced the argument that Proposition 8's sponsors should be able to appeal a federal judge's decision last year striking down the same-sex marriage ban because the governor and attorney general have refused to defend the voter-approved law.
The case now returns to the 9th U.S. Circuit Court of Appeals, which has no timetable to rule on the validity of Proposition 8 but is in a position to move swiftly because both sides have already filed their legal briefs and argued the case in a hearing nearly a year ago. Still, Vikram Amar, a UC Davis law professor, cautioned, "The 9th Circuit sits on some cases for a long time."
Nonetheless, the state Supreme Court has removed any doubt about the law being defended on appeal.
The Supreme Court warned it would "undermine" the state ballot initiative process if the governor and attorney
"The inability of the official proponents of an initiative measure to appeal a trial court judgment invalidating the measure, when the public officials who ordinarily would file such an appeal decline to do so, would significantly undermine the initiative power," Chief Justice Tani Cantil-Sakauye wrote for the court.
The 9th Circuit triggered the Supreme Court's intervention earlier this year when it asked the justices to decide whether sponsors of ballot measures such as Proposition 8 have so-called "standing" under California law to defend those laws when top state officials abandon a case.
With that issue unresolved, the 9th Circuit put on hold its review of former Chief Judge Vaughn Walker's August 2010 ruling that found Proposition 8 unconstitutional because it violates the equal protection rights of gay and lesbian couples.
The state Supreme Court's ruling now puts the 9th Circuit in a position to move forward and decide the merits of the legal challenge to Proposition 8. Two same-sex couples, including one from Alameda County, sued to overturn the law, hoping to eventually push the issue to the U.S. Supreme Court.
Proposition 8 sponsors were pleased with the chance to go forward with their appeal, calling the Supreme Court decision a "huge disaster for the homosexual marriage extremists."
"The court totally rejected their demand that their lawsuit to invalidate Proposition 8 should win by default with no defense," said Andrew Pugno, counsel for ProtectMarriage.com.
But lawyers for the same-sex couples said they're ready for the 9th Circuit to rule on the legality of the gay marriage ban.
"This frees up the 9th Circuit to go ahead and decide the constitutional issues on the merits," said Theodore Olson, former U.S. Solicitor General during the Bush administration. "We're anxious to get to a decision on the merits that Proposition 8 is unconstitutional."
Even lawyers for same-sex couples conceded the 9th Circuit would follow the state Supreme Court's guidance. David Boies, one of those lawyers, said it was "very unlikely" the federal appeals court would bar Proposition 8's sponsors from defending the law, noting the judges themselves said in their original request to the state Supreme Court that they would rely on the justices to resolve the matter. But the standing issue could resurface if the case reaches the U.S. Supreme Court.
The 9th Circuit has one other unresolved question, as Proposition 8 backers have raised new arguments that Walker's ruling should be set aside because he had been in a long-term same-sex relationship at the time he held last year's historic trial in the case and therefore is presumed biased.
Chief U.S. District Judge James Ware rejected that argument earlier this year, but Proposition 8 lawyers have appealed his ruling to the 9th Circuit.
Contact Howard Mintz at 408-286-0236