Decision on Proposition 8 Sets the Stage for U.S. Supreme Court Action Regarding the Constitutionality of Same-sex Marriage Bans

While same-sex marriage remains a rapidly-changing area of family law in California and the rest of the country, the United States Supreme Court has yet to rule on the issue.  This has a great disparity amongst state laws regarding same-sex marriage and gay rights.  However, a ruling last week by the California Supreme Court may shake things up.

Pro and anti-Proposition 8 protesters rally in...Image via Wikipedia

Last week, the California Supreme Court voted unanimously that the sponsors of Proposition 8,  a ban on gay marriage that was approved by the state’s voters in 2008, are entitled to defend them in court when the state refuses to do so.  The state high court’s decision, a defeat for gay rights groups, sets the stage for a federal court action that would affect same-sex marriage bans outside California and puts the issue of same-sex marriage back on track to be heard by the U.S. Supreme Court.

How We Got Here
On August 4, 2010, a San Francisco federal judge ruled that Proposition 8 was unconstitutional and that gays and lesbians have the legal right to marry.  State officials are entitled to champion ballot measures in court, but Governor Jerry Brown and Attorney General Kamala D. Harris have refused to defend  Proposition 8.   This failure to act led supporters of Proposition 8 to petition the judge’s decision before the U.S. Court of Appeals for the Ninth Circuit.  Before hearing the case, the U.S. Court of Appeals for the Ninth Circuit had asked the California Supreme Court to clarify whether state law gives initiative sponsors  standing,  or legal authority, to defend their measures.
Looking Forward
The unanimous decision, written by Chief Justice Tani Cantil-Sakauye, strongly affirmed that ballot sponsors may represent California in defending initiatives when elected officials fail to do so.
Cantil-Sakauye wrote for the court:
“Neither the Governor, the Attorney General, nor any other executive or legislative official has the authority to veto or invalidate an initiative measure that has been approved by the voters.”

Although the U.S. Court of Appeals for the Ninth Circuit is not bound by the California Supreme Court’s decision, it makes it far less likely that it will decide the future of Proposition 8 and same-sex marriage.  This ruling essentially gives the federal Court of Appeals the opportunity to address the constitutionality of same-sex marriage bans.   It also means the issue could likely end up in front of the U.S. Supreme Court, which could rule on the constitutionality of same-sex marriage bans in all states.
The status of same-sex marriage remains to be seen. 

Legal updates brought to you by the Orange County law firm of Don Ho, LLP.

All factual information taken from the Los Angeles Times.

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