The California Supreme Court on Wednesday issued notice that they will take up the 9th Circuit’s request that they determine whether those defending Proposition 8, California’s voter-enacted ban on same-sex marriage, have standing under state law to appeal Judge Vaughn Walker’s ruling overturning the ban.
From the Keen News Service:
The announcement, at 5:20 p.m. EDT Wednesday, means the California court will soon hear arguments in the landmark Perry v. Schwarzenegger case. But the question will be a procedural one only: whether there is any authority under California law that would provide Yes on 8 proponents with standing to defend Proposition 8 in a federal appeals court.
The court’s brief announcement said it would hear arguments on an expedited schedule and asked that the first briefs be due March 14 and that oral argument take place as early as September.
Once the California Supreme Court decides whether state law provides any right to Yes on 8 to represent voters on appeal, the 9th Circuit U.S. Court of Appeals panel will then make its final determination as to whether Yes on 8 has standing to appeal. And, if the 9th Circuit says Yes on 8 does have standing, it will also rule on the constitutionality of Proposition 8.
As mentioned above, the question before the California Supreme Court is solely procedural and concerns whether the defendant-intervenors in this case, the group Protect Marriage, have legal standing under California law to appeal at the federal level.
In his original ruling Judge Vaughn Walker raised questions as to whether the defendant-intervenors have legal standing enough to even defend Proposition 8 before the 9th Circuit Court of Appeals.
The state’s administration would usually defend the law in such cases, but the anti-gay marriage group Protect Marriage intervened when both the then governor Arnold Schwarzenegger and the then attorney general Jerry Brown declined to do so because they believed the 2008 ballot measure was unconstitutional.
Although Protect Marriage 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 the 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 with briefs to be served and filed no later than Monday, March 14. This will likely push back the 9th Circuit’s decision well into 2012.
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