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Gay Marriage Issue Returns To California Court

Paresh Dave |
September 5, 2011 | 10:58 a.m. PDT

Editor-In-Chief

The coalition known as ProtectMarriage.com is the leading supporter of reinstating a ban on gay marriage, which California voters approved of 52 percent to 48 percent in November 2008.
The coalition known as ProtectMarriage.com is the leading supporter of reinstating a ban on gay marriage, which California voters approved of 52 percent to 48 percent in November 2008.
Should the groups who helped California's ban on gay marriage earn voter approval in 2008 be allowed to prevent the ban from being killed by the courts?

The California Supreme Court, which will hear arguments on the issue on Tuesday, will have until early December to render its nonbinding recommendation on whether or not they should. The final binding decision will come from the U.S. 9th Circuit Court of Appeals in San Francisco, which asked for the California Supreme Court's recommendation.

"This court customarily defers to state law," said Jesse Choper, an expert on federal law at UC Berkeley. "That's why the 9th Circuit in this case is getting an authoritative decision about whether the proponents of Prop 8 have standing [according to state laws.]"

Many legal experts expect the state court will find that the supporters of the Proposition 8 ban on gay marriage do have standing to defend their initiative in court because the state's top elected officials -- all Democrats in favor of allowing same-sex marriage -- refuse to do so. That's where the good news would end for supporters of a ban. The 9th Circuit likely would uphold a federal district judge's ruling that a ban on gay marriage is unconstitutional.

Proposition 8 supporters then could appeal to the U.S. Supreme Court, but experts remain divided on whether justices even would take the case or how broad a ruling they would issue. The U.S. Supreme Court has been more strict in interpreting rules for standing than lower federal courts and California courts.

Tuesday marks the first day of the California Supreme Court's term, and the Proposition 8 hearing will mark the first hearing for newly-minted justice Goodwin Liu.

The hearing can be seen online, beginning at 10 a.m. Tuesday.

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