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Opponents of same-sex marriage ban urge California Supreme Court to reject federal appeals court request

January 25, 2011 |  5:37 pm

An attorney for same-sex couples hoping to overturn Proposition 8 in federal court urged the California Supreme Court on Tuesday to reject a federal appeals court request to determine whether state law gives initiative sponsors legal authority to defend ballot measures.

The U.S. 9th Circuit Court of Appeals asked the state high court earlier this month whether California law gives initiative proponents the right to defend a ballot measure when state officials refuse to do so.

In federal court, the general rule is that only a party that is directly affected by a trial court ruling  has standing or authority to appeal it. State officials have refused to appeal the August ruling against Proposition 8.

In his letter to the state court, Theodore B. Olson, an attorney for two same-sex couples, said the question of standing in federal court is a federal constitutional issue, not a state one, and that the California Supreme Court would merely prolong the case by agreeing to answer the 9th Circuit’s question.

Olson also argued that “well-established” law in California denies initiative sponsors the right to represent the state in litigation.

“It is clear that California law vests the Attorney General -- not private litigants -- with the authority to represent the State’s interest in litigation,” Olson wrote.

Erwin Chemerinsky, a constitutional law professor and dean of UC Irvine’s law school, said he was not surprised by Olson’s argument. Lawyers generally want an issue to be decided by a forum where they expect to win, Chemerinsky said.

The California Supreme Court has never clearly stated whether initiative sponsors have legal authority to defend ballot measures, and how it would rule is difficult to predict, the professor said. In contrast, two of the three 9th Circuit judges hearing the case appeared likely to rule in some fashion in favor of Proposition 8’s challengers.

The state high court is still reviewing letters on the case and has not yet decided whether to agree to the 9th Circuit's request.

If the 9th Circuit determines that the backers of Proposition 8 lack standing to appeal, the court would not reach the constitutional questions, and the lower court ruling against the marriage ban would be limited to California, legal experts have said.

Theodore Boutrous Jr., another lawyer for the same-sex couples, said Tuesday that the legal team wants the case to “move forward as quickly as possible” because the couples who filed the lawsuit “are suffering irreparable injury to their constitutional rights.”

Proponents of Proposition 8 have argued that a single judge should not be permitted to throw out a ballot measure approved by a majority of voters. The proponents also contend that California law gives them the right to defend ballot measures when state officials refuse to do so.

-- Maura Dolan