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Prop. 8: Imperial County's role in defending gay-marriage ban questioned

December 6, 2010 | 11:06 am

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

Erwin Chemerinsky, dean of the UC Irvine School of Law, said one of the issues before the court is whether Imperial County, where voters overwhelmingly supported Prop. 8, has the authority to intervene in the case and defend the initiative. Here’s an analysis he provided to The Times:

If Imperial County can intervene and defend Prop. 8, then there would be no need for supporters of Prop. 8 to have standing to do so. But both Judge Hawkins and Judge Smith seem very skeptical of the authority of the deputy clerk to seek to intervene on behalf of Imperial County. Both stressed that the clerk is not seeking to intervene and a deputy clerk lacks the authority to do this. Judge Smith also has raised the issue of whether the clerk is a state officer or a local officer. If the clerk is a state officer, then the clerk would not have the authority to represent the state -- only the governor and the attorney general can do so. The clear sense so far is that all three judges are very skeptical of allowing Imperial County to intervene.

As someone who has argued dozens of appellate cases, I empathize with Mr. Tyler, who represented a deputy clerk from Imperial County in seeking to intervene. It was clear from the time he came to the podium that none of the three judges thought that a deputy clerk has standing to represent the clerk or the county.  He also made a major error in saying that the clerk was appointed and then having to correct himself and say that the clerk is elected.

It is often difficult to read oral arguments to get a sense of the result, but the judges left little doubt that they do not believe that the deputy clerk has standing to represent Imperial County. This is important because if the supporters of Prop. 8 do not have standing and Imperial County cannot intervene to appeal, then the appeal must be dismissed for lack of standing.


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Judges must decide whether backers of same-sex marriage have legal standing to appeal

Arguments before court go well beyond gay marriage, Pepperdine professor says

Photo: Erwin Chemerinsky UCI