State high court to decide if Prop. 8 backers can appeal

by Lisa Keen

Keen News Service

San Francisco--The road to marriage equality in California just got a little longer.

The California Supreme Court said it would rule on whether proponents of the Proposition 8 marriage ban amendment have authority, under California law, to appeal a federal court ruling that the initiative is unconstitutional.

The February 16 announcement means the California court will soon hear arguments in the landmark Perry v. Schwarzenegger case. But the question will be a procedural one only: whether there is any authority under California law that would provide Yes on 8 proponents with standing to defend Proposition 8 in a federal appeals court.

The court�s brief announcement said it would hear arguments on an expedited schedule and asked that the first briefs be due March 14 and that oral argument take place as early as September.

Once the California Supreme Court decides whether state law provides any right to Yes on 8 to represent voters on appeal, the Ninth Circuit U.S. Court of Appeals panel will then make its final determination as to whether Yes on 8 has standing to appeal. And, if the Ninth Circuit says Yes on 8 does have standing, it will also rule on the constitutionality of Proposition 8.

The question before the California Supreme Court was whether there is any authority under California law that would enable Yes on 8 proponents to represent voters who approved Proposition 8.

The answer mattered to the Ninth Circuit Court of Appeals panel. Without any authority under state law, the appeals panel suggested, the group might not have any �standing� at all to appeal the decision. If a party has �standing,� they are sufficiently affected by a conflict to justify having a court hear their lawsuit or appeal on the matter.

When the legal team of Ted Olson and David Boies filed a legal challenge to California�s Proposition 8 in federal district court, the state, under Governor Arnold Schwarzenegger and Attorney General Jerry Brown, had standing to defend the law. But neither provided a defense and, instead, the Yes on 8 coalition that campaigned for the initiative did so.

When the district court found Proposition 8 unconstitutional, the state officers said they would not appeal the decision, so Yes on 8 once again sought to defend the law, this time in the federal appeals court. But both Schwarzenegger and Brown urged the Ninth Circuit not to accept the appeal, saying the best thing for California was to abide by the district court ruling.

So, when the Ninth Circuit panel heard oral arguments on the appeal last December, one of the first and most pressing issues it had to wrestle with was whether Yes on 8 still had �standing� to bring the appeal when the state government had decided it wanted to honor the district court decision.

What bothered the panel was their belief that the state officers--Schwarzenegger and Brown�were acquiring veto power by simply refusing to defend a voter-approved law with which they disagreed. The panel asked the California Supreme Court to say whether there might be some authority under state law that would provide Yes on 8 with standing to bring the appeal.

Olson and Boies filed briefs with the California Supreme Court, saying the state court should not provide such a determination because the standing issue in a federal appeals court is essentially a matter of federal law.