9th Circuit Punts Prop 8
Special Report - January 6, 2011
The ongoing legal battle over the constitutionality of Proposition 8, the marriage amendment adopted by the majority of Californians in a 2008 referendum, has once again reached the California Supreme Court. In an order issued January 4, the U.S. Court of Appeals for the 9th Circuit sent the case, Perry v. Schwarzenegger, to the state’s highest court in the form of a question. At issue for the 9th Circuit: whether the proponents of Proposition 8 have “legal standing” to defend the marriage amendment when state officials, including the state attorney general, have refused to defend it. Proposition 8 is being defended by lead counsel Charles J. Cooper, and attorneys representing Protectmarriage.com, the official proponents of the marriage initiative, as well as attorneys with the Alliance Defense Fund (ADF). In August 2010, a three-judge panel of the 9th Circuit stayed a controversial ruling by U.S. District Judge Vaughn Walker that struck down Proposition 8 until a full panel of the 9th Circuit could consider the appeal.
In its January 4 order, the 9th circuit said it could not consider the constitutionality of Proposition 8 “unless the appellants have standing to raise it.” The 9th Circuit is asking the State Supreme Court to answer the following question: “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.”
“Politicians should not be able to nullify a democratic act of the people by refusing their duty to defend it,” said ADF Litigation Counsel Jim Campbell in a press release. “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. Otherwise, the Governor and Attorney General will succeed in indirectly invalidating a measure that they had no power to strike down directly. With this recent development, the Alliance Defense Fund and the rest of the Protectmarriage.com legal team remain confident that the right of the people of California to protect marriage in their constitution will ultimately be honored.”
This is not the first time that Proposition 8 has come before the California Supreme Court. In May 2009, the court upheld Proposition 8 as constitutional in a case involving several lawsuits challenging the marriage amendment (that case was Strauss v. Horton). Regardless of how the California Supreme Court rules on the question of legal standing, both sides of the legal battle over Proposition 8 expect the case to go all the way to the U.S. Supreme Court.
NCFPC Joins Prop 8 Brief - September 24, 2010.
9th Circuit Stays Prop 8 Ruling - August 16, 2010.
Judge Won't Stay Prop 8 Ruling - August 13, 2010
Judge Rules Prop 8 Unconstitutional - August 5, 2010
The Issue That Will Not Go Away - FNC - Spring 2010
California Court Upholds Marriage Amendment - May 26, 2009
California Court To Rule On Proposition 8 - November 24, 2008
California Amendment Not Retroactive - August 8, 2008
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