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Prop 8 Standing: Proponents Have Right to Appeal Says Court

By Stephanie Rabiner, Esq. on November 17, 2011 10:09 AM

This morning, the California Supreme Court officially weighed in on the issue of Prop 8 standing, and it isn't looking too good for the initiative's opposition. The high court found that California law does give Protect-Marriage and Yes on 8 the right to appeal the 2010 decision overturning Proposition 8's ban on same-sex marriage.

Supporters of the ban took up the defense of Prop 8 when the governor and attorney general refused to do so. But once in the 9th Circuit, the court questioned whether they had standing to appeal. The appellate panel thus asked the California Supreme Court to determine whether such a right exists under state law.

The California court found that standing exists in this situation because the state's public officials have completely "declined to defend the initiative's validity." Allowing Prop 8 supporters to proceed ensures the fairness of the judicial process and supports the integrity of the state's voter initiative system.

Even though the 9th Circuit requested the above advice, it is not binding and will be considered an advisory opinion. However, the 9th Circuit is likely to go along with the highest state court in California.

The 9th Circuit sought the opinion because California law is essential to determining whether proponents of Prop 8 have standing to appeal. Until today's decision, the court "lack[ed] an authoritative statement of California law that would establish" this right. They found it "critical that [they] be advised of the rights under California law."

In fact, the answer is so critical that the 9th Circuit believed that that a 1997 Supreme Court opinion required them to seek a more definitive answer from the state supreme court.

If the 9th Circuit follows the advice of the California Supreme Court, Prop 8 standing will exist. The court will then move onto the merits of the case, and determine whether the same-sex marriage ban is constitutional. If it finds it is not, then gay marriage will become legal in California.

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