California attorney general Kamala Harris told the California Supreme Court this week that supporters of Proposition 8, the 2008 voter enacted gay marriage ban, do not and should not have standing to appeal federal judge Vaughn Walker’s ruling that the ban is unconstitutional.
Harris, who unsuccessfully asked the 9th Circuit Court of Appeals to allow same-sex marriages to resume while the case is being decided, submitted an amicus brief to the supreme court on Monday. The supreme court is currently trying to decide whether the defendant-intervenors in the case have a right to appeal under state law because it has been suggested they lack standing under federal law.
In the brief Harris argued that only the state’s executive branch should be able to defend state laws because to allow defendant intervenors such a right robs the electorate of its power “by taking the executive power from elected officials and placing it in the hands of a few highly motivated but politically unaccountable individuals.”
You can read the full brief over at The Advocate.
In his original ruling Judge Vaughn Walker raised doubts as to whether the defendant-intervenors have legal standing enough to defend Proposition 8 before the 9th Circuit Court of Appeals.
The state’s administration would usually defend the law in such cases, but the anit-gay group ProtectMarriage intervened when both the then governor Arnold Schwarzenegger and the then attorney general Jerry Brown declined because they believed the 2008 ballot measure was unconstitutional.
Although ProtectMarriage was allowed to intervene during the original court case, as defendant-intervenors the right to defend the law at appeal was not automatically granted them.
In accepting the case, the 9th Circuit Court of Appeals stated that the defendant-intervenors would have to prove their standing in order for the appeal to go ahead.
The three-judge panel heard arguments in December of last year on both the constitutionality of Proposition 8 and the standing of the defendant-intervenors.
In January, the 9th Circuit Court of Appeals asked the California Supreme Court to advise on whether defendant-intervenors in the case have standing to appeal under state law, a critical question in determining whether those defending the gay marriage ban can proceed.
In taking up this request, the California Supreme Court said that it will hear oral arguments in September. This will likely push back the 9th Circuit’s decision well into 2012.
Gay rights groups have accused the courts of dragging out the case unnecessarily while attorneys David Boies and Ted Olson filed a motion for the hearings to be moved forward to May. The California Supreme Court refused that motion to expedite, meaning that the question of standing will be taken up in September as originally scheduled.
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