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California gay marriage ban faces next legal hurdle

Published September 6, 2011 10:58 am

This is an archived article that was published on sltrib.com in 2011, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

San Francisco • California's highest court seems inclined to side with backers of the state's same-sex marriage ban in thinking that the state Constitution gives ballot initiative proponents legal authority to defend their measures in court.

The California Supreme Court heard more than an hour of arguments Tuesday on that question, which could prove pivotal to the future of the voter-approved ban, known as Proposition 8.

Several justices noted that the court has never refused to allow the sponsors of ballot questions to appear before it when measures were challenged.

The Supreme Court is considering the matter at the request of a federal appeals court that is weighing whether the ban violates the constitutional rights of same-sex couples.

"What the court has before it are questions about how the state's direct democracy rules should be understood to sync with its constitutionally based ideas of representative government," Ohio State University Moritz College of Law Marc Spindelman. "Who speaks for the people and the state – and when? Can unelected officials determine how state law will be defended? Should they be allowed to defend the law when state officials elected by the people to represent them will not? Are state officials who refuse to defend a legal measure on appeal practically exercising a veto right that the rules of direct democracy in California do not allow?

Proposition 8 reinstated a ban on same-sex marriages in California by amending the state Constitution to supersede a California Supreme Court ruling that had legalized gay unions five months earlier. The Williams Institute, a think tank on sexual orientation and the law at the University of California, Los Angeles, has estimated that 18,000 couples tied the knot during the brief window.