Appeals panel sends Prop. 8 case to state high court

by Anthony Glassman

San Francisco--The federal appellate court hearing a challenge to California�s anti-marriage constitutional amendment sent the case to the state supreme court on January 4, asking if the amendment�s sponsors have legal standing to defend it in appeals court.

The Ninth Circuit Court of Appeals heard oral arguments in December in the appeal of District Court Judge Vaughn Walker�s August 4 ruling.

Walker found Proposition 8, which ended California�s granting of same-sex marriages, unconstitutional.

While the amendment would normally have been defended by the state�s attorney general, Jerry Brown, both he and then-Gov. Arnold Schwarzenegger refused to do so. Both the group that originally campaigned for the amendment and Imperial County, California sought status to intervene in the case, defending the amendment.

Brown is now the governor of California. Both he and Schwarzenegger spoke out against Prop. 8 prior to its 2008 passage.

With the state officials refusing to defend Prop. 8 in federal court, Judge Walker allowed the measure�s backers to do so.

But the appeals court panel is leery of granting them standing. On the other hand, they do not want the �will of the people� essentially overturned by executive fiat, by refusing to defend it in court.

While unwilling to decide on the issue of the Prop. 8 sponsors� status as defendant-interveners, the appellate court did rule that the Imperial County deputy clerk who had asked to be added to the case could not defend the proposition.

The California Supreme Court is being consulted as the final authority on the state�s laws. If the court decides that the sponsors can intervene, authority reverts to the Ninth Circuit Court of Appeals and the case continues on the question of Prop. 8�s constitutionality.

If the state high court rules against them, it is likely that the appellate court panel will dismiss the appeal, letting Walker�s original ruling stand--and restoring full marriage to California.

�We are confident that the California Supreme Court will answer those questions fully and expeditiously given the vital importance of this case to hundreds of thousands of Californians who are being discriminated against daily by the existence of Proposition 8,� said attorney Ted Olson of the American Foundation for Equal Rights.

Olson is one of the attorneys representing the couples in the original marriage case and in the current case. �We are also confident that the plaintiffs ultimately will prevail and that the district court�s judgment will be affirmed.�

New York Law School Prof. Arthur S. Leonard, in an analysis of the case for Gay City News, pointed to a 1997 suit over an Arizona amendment requiring that all state business be done in English. The measure passed against the wishes of the state�s leaders, who then refused to defend it in court. The U.S. Supreme Court �observed that state ballot initiative proponents do not enjoy such standing in the absence of authorization under state law or what is known as a particularized interest as individuals that would be affected by the outcome of a lawsuit.�

Despite being a notable legal and academic light in the field of LGBT equality, Leonard sympathized with the proponents of Prop. 8.

�As a longtime legal observer and analyst, I have no feel for how this issue should be answered as a matter of California law, but, as a purely political matter, I have sympathy for the argument that somebody needs to have standing to appeal,� he wrote.

�A majority of the voters approved Proposition 8, and it appears unseemly that the votes of millions should be cast aside by a single federal district judge without any possibility of appellate review,� Leonard noted. �A basic proposition of American jurisprudence is that a losing party at trial has a right to at least one appeal of their case.�

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