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California's same-sex marriage ban faces next legal challenge

By Catholic Online (NEWS CONSORTIUM)
September 7th, 2011
Catholic Online (www.catholic.org)

The state of California's Proposition 8, called by its supporters as the California Marriage Protection Act was a ballot proposition and constitutional amendment passed in the November 2008 state elections. Declaring that "only marriage between a man and a woman is valid or recognized in California," Proposition 8 has faced numerous legal challenges by same-sex marriage supporters.  The proposition's next legal test will be on Tuesday, when the state's highest court attempts to shed light on whether the voter-approved measure's backers have legal authority to appeal the federal ruling that overturned Proposition 8.

LOS ANGELES, CA (Catholic Online) - "This is a pivotal hearing for us as we continue to fight to uphold the People's vote to restore traditional marriage in California against these ferocious attacks," Andy Pugno, legal counsel for the Proposition 8 coalition said in a letter to supporters last week. "We simply cannot allow our opponents to manipulate the legal system to the point where there is nobody left to defend the People!"

The California Supreme Court is scheduled to hear arguments and could prove crucial to the future of the voter-approved ban. The federal appeals court that is considering the initiative's constitutionality wants the state court to consider the measure on the matter before it renders its decision.

Proposition 8 reinstated a ban on same-sex marriages in California by amending the state Constitution to supersede a California Supreme Court ruling that had legalized gay unions five months earlier. It's estimated that 18,000 couples tied the knot during the brief window.

Attorneys for the coalition of religious, conservative groups that qualified Proposition 8 for the November 2008 ballot say they are legally eligible to represent the majority of California voters who approved the same-sex marriage ban. They say that because California has such a vigorous citizen's initiative process, it would not make sense for elected officials to effectively veto measures by not defending them in court.

If the Supreme Court says the ban's proponents don't have standing to appeal, and if the 9th Circuit and the U.S. Supreme Court ultimately agree, it would clear the way for same-sex marriages to resume in California. Such an outcome would also limit the potential impact of the closely watched catch because it would prevent higher courts from reaching its constitutional merits.

"What the court has before it are questions about how the state's direct democracy rules should be understood to sync with its constitutionally-based ideas of representative government," Ohio State University Moritz College of Law Marc Spindelman says.

"Who speaks for the people and the state - and when? Can unelected officials determine how state law will be defended? Should they be allowed to defend the law when state officials elected by the people to represent them will not? Are state officials who refuse to defend a legal measure on appeal practically exercising a veto right that the rules of direct democracy in California do not allow?"

Same-sex couples in San Francisco say they are planning a "sit in" on the steps of the city's State Building during Tuesday's hearing.

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