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William C. Duncan
Thursday, January 13 2011

Update on Prop 8 Litigation—The Drama Continues

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In November 2008, seven million California voters approved Proposition 8, an amendment to the state constitution that reaffirmed the definition of marriage as the union of a husband and wife. Subsequently, a Hollywood-financed  lawsuit to undo the vote was filed in a federal court based in San Francisco. The intention of the lawsuit is not only to overturn California’s marriage definition but also to get the U.S. Supreme Court to rule that the marriage laws of all but five states are unconstitutional and thus mandate same-sex marriage on the nation (http://www.time.com/time/politics/article/0,8599,2009335,00.html).

In August 2010, Judge Vaughn Walker of the U.S. District Court of the Northern District of California ruled that California voters were acting out of illegitimate prejudice and hatred when they voted for Proposition 8. He then ruled that perhaps the official proponents of Proposition 8 should not have been allowed to participate in the lawsuit. They had been allowed in, by Judge Walker himself, because the California attorney general (now-governor Jerry Brown) and governor refused to defend the law.

This decision was appealed to the U.S. Court of Appeals for the Ninth Circuit where it is now pending. Both sides and their supporters have made their submissions to the three judges assigned to the case and an oral argument was held in early December.

Last week, the Ninth Circuit panel decided that it needed more information before it could decide the case. It formally requested  the California Supreme Court to tell the court whether state law allows supporters of ballot measures to participate in a case where the government officials charged with doing so fail to do their jobs. In making their request to the California Supreme Court, the federal panel noted that the big-time law firms involved in challenging the law seemed to have been trying to maneuver to keep the supporters of Proposition 8 from having a voice in the lawsuit.

The process of getting a declaration on state law will, of course, considerably

delay a decision by the federal appeals court in the case.

If the California Supreme Court says that the official supporters of Proposition 8 would be allowed in the case under state law, as it is expected to do, there would be no reason for the appeals court not to answer the underlying question in the case—whether marriage may still be defined as the union of husband and wife. It may also make it more likely that the U.S. Supreme Court will do so.

Prop8ontrial

Although Supreme Court review is the goal of the activist groups challenging Proposition 8, the Court does not have to take all cases that come to it. It is often more likely to do so if there’s a disagreement among the federal courts in different regions. The only other federal appeals court to decide a same-sex marriage case, the Eighth Circuit, ruled in favor of Nebraska’s marriage law. So, the result in the Ninth Circuit will probably greatly increase or decrease the likelihood of the Supreme Court deciding to become involved.

What happens from here is speculation and significant time may go by before there’s anymore to report on the case. Until then, a sword hangs over marriage in California, and over the principle of self-government.

William C. Duncan is the director of the Marriage Law Foundation.

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