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Prop. 8: If governor and attorney general don't defend gay-marriage law, who can?

December 6, 2010 | 11:45 am

Prop8-hearing2

In the second half-hour of the Prop. 8 hearing, judges grilled anti-Prop.8 attorney David Boies on the question of who has standing to appeal Judge Vaughn Walker's lower-court decision tossing the law.

Both Gov. Arnold Schwarzenegger and Atty. Gen. Jerry Brown (now the governor-elect) declined to appeal Walker's decision.

That prompted the judges to question who did have the right to appeal, an important point, they noted, given that a majority of California's electorate voted in 2008 for Prop. 8, which defined marriage as between a man and a woman.

"My problem is, in fact, the governor's and the attorney general's actions have essentially nullified the considerable efforts that were made on behalf of the iniatitive," said Judge N. Randy Smith, the most conservative judge on the panel.

He and other judges noted that neither Schwarzenegger nor Brown had the power to veto the proposition when voters approved it. But by declining to appeal the legal judgement, were they not effectively vetoing it?

Judge Stephen Reinhardt raised the possibility of asking the California Supreme Court to answer this question of state law. (A federal court of appeals can do this by "certifying" the question to the California Supreme Court.)

UC Irvine Law School Dean Erwin Chemerinsky, who is analyzing Monday's court arguments for The Times,  noted: "This raises a possible outcome of today's argument that no one has yet raised. It would mean that the case would go to the California Supreme Court to answer the question of California law on who has standing to defend an initiative, and then come back to the 9th Circuit."

FULL COVERAGE:

If ruling overturning Prop. 8 allowed to stand, court must decide who would be bound by it

Federal appeals panel might return some issues to state Supreme Court

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

Photo: Judge Stephen Reinhardt. CSPAN

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