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Prop. 8 analysis: Federal appeals panel might return some issues to state Supreme Court

December 6, 2010 | 11:15 am

Mcdonald The first portion of the Prop. 8 appeals court hearing has focused in part on whether foes of gay marriage have standing to appeal.

Barry P. McDonald, a professor at the Pepperdine School of Law, says the issues being made in court go well beyond the questions of marriage. Here's an analysis he provided to The Times:

On whether the Prop. 8 sponsors or Imperial County have standing to appeal the district court's ruling, the appellate panel appears to be leaning toward "certifying" the complex questions of California law to the California Supreme Court for an answer. The certification process is one where federal courts, as a matter of federal-state respect, can ask a state supreme court to answer a question of state law that is at issue in a federal law case.

Certifying the question to the state Supreme Court will considerably lengthen the course of this litigation, as it would likely take that court six to 12 months to address this issue. It seems to me that the appellate panel is leaning this way, not only to avoid deciding difficult questions of constitutional law unnecessarily, but because they are troubled by the fact that the attorney general and governor would effectively be voiding a law adopted by a majority of Californians by refusing to defend it in court. And so we can see that policy questions may also have an effect on how the judges decide this case.


Imperial County's role in defending gay-marriage ban questioned

Judges question whether gay-marriage foes have legal standing

Judges must decide whether backers of same-sex marriage have legal standing to appeal, UC Irvine Law School dean says

Photo: Barry McDonald. Credit: Pepperdine University