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Proposition 8 lawyers to offer written arguments in latest battle

November 18, 2011 |  2:45 pm

Gay marriage signs in San Francisco Nov 17 2011
A federal appeals court Friday gave lawyers in the Proposition 8 case two weeks to present written arguments on whether the California Supreme Court’s sweeping decision protecting initiatives entitles sponsors of the gay marriage ban to defend it in federal court.

Lawyers in the Proposition 8 case expect a quick ruling from the U.S. 9th Circuit Court of Appeals on the measure’s constitutionality. They said the 9th Circuit’s request Friday for additional briefing underscored the court’s desire to create a complete record as the landmark case moves forward.

The constitutional dispute is expected to reach the U.S. Supreme Court, which could decide as early as 2013 whether gay and lesbians have the right to marry. The California high court ruled unanimously Thursday that sponsors of ballot measures are entitled to defend them in state court when elected officials refuse to do so.

The ruling came in response to a request from the 9th Circuit, which wanted clarification of state law on whether initiative proponents have what is called standing to defend their measures in state court. The 9th Circuit was struggling at the time to decide whether ProtectMarriage, the sponsor of Proposition 8, had standing to appeal a trial court judge’s ruling against Proposition 8.

Federal courts consider state law but are not bound by it in deciding whether someone has standing to bring a case in federal court. Legal scholars and lawyers quickly predicted Thursday that the California high court’s emphatic decision in favor of ballot proponents would persuade the 9th Circuit to permit ProtectMarriage to defend it in the place of state officials.

If the 9th Circuit dismissed the appeal on standing grounds, U.S. Chief Judge Vaughn R. Walker’s ruling against Proposition 8 would remain but have no affect outside California.


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Photo: Supporters of the Proposition 8 ban on gay marriage protest in September outside the California Supreme Court in San Francisco. Credit: Robert Galbraith / Reuters