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Prop. 8 analysis: Federal hearing seems to indicate that issue of same-sex marriage may end up back in state court, legal expert says [Updated]

December 6, 2010 | 11:48 am

Courtney A federal appeals court on Monday began hearing arguments on the constitutionality of Prop. 8, California's ban on same-sex marriage.

Courtney Joslin, an acting professor at the UC Davis School of Law, says the hearing seems to indicate that the issue of same-sex marriage may be headed back to California state courts. Here's the analysis she provided The Times:

[For the record, 12:34 p.m.: An earlier version of this post incorrectly transposed the name of acting Prof. Joslin. Her correct name is Courtney Joslin.]

The issue of whether same-sex couples should be permitted to marry in California has followed a winding and complex path.

In May 2008, the California Supreme Court held that the statute limiting marriage to the union of a man and a woman violated the California Constitution. Approximately six months later, the people of California narrowly approved Prop. 8, an amendment to the California Constitution eliminating the right of same-sex couples to marry, and once again limiting marriage in California to the union of one man and one woman.

Immediately after Prop. 8 was approved, a number of lawsuits were filed in California state court challenging its validity. In May 2009, one year after its In re Marriage decision, the California Supreme Court held that Prop. 8 was a valid amendment to the California Constitution. The same week that the state Supreme Court upheld Proposition 8 in that decision, David Boies and Ted Olson filed Perry vs. Schwarzenegger, the case now before the U.S. 9th Circuit Court of Appeals.

Monday morning's hearing suggests that the issue of marriage for same-sex couples may be headed back to California state courts.

In the first hour of the hearing, the 9th Circuit panel focused on the issue of whether there is any party properly before court who seeks to defend Prop. 8. The named defendants -– the California attorney general and the governor -– declined to file an appeal of Chief U.S. District Court Judge Vaughn R. Walker’s ruling holding Prop. 8 invalid under the federal Constitution.

In a recent case, the U.S. Supreme Court expressed "grave doubts" as to whether the official proponents of an initiative have standing to defend the initiative in the absence of any state defendants, unless state law officially grants them the right to act as agents of the people.

The Prop. 8 proponents have argued that California law does grant them such a right. Those opposed to Proposition 8 have argued to the contrary.

The questioning from the 9th Circuit panel suggests that California state courts may have to once again wade into legal issues related to marriage for same-sex couples. At various points in the hearing, panel members asked counsel whether the court should ask the California state courts to determine whether there is any such California law.


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

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

Photo: Courtney Joslin.  Courtney. Credit: UC Davis