Gay marriage case to proceed

Court says backers have standing to defend Calif. ban

November 18, 2011|By Jerry Markon, Washington Post

Same-sex marriage supporters in San Francisco demonstrated against Proposition… (Eric Risberg/Associated…)

WASHINGTON - A California court cleared the way yesterday for federal appeals judges to render a highly anticipated decision on whether the state’s ban on same-sex marriage violates the US Constitution.

The California Supreme Court ruled that proponents of the ban, known as Proposition 8, have the legal standing to defend it in court. The question had become crucial in the legal battle over the measure because California officials had declined to defend it, as is customary when laws are challenged.

A federal judge in August struck down the voter-approved same-sex marriage ban as unconstitutional, and proponents of Proposition 8 are seeking to appeal that ruling to the US Court of Appeals for the Ninth Circuit.

The Ninth Circuit, after hearing nationally televised arguments on the law’s constitutionality, took the unusual step in January of first asking the California Supreme court to decide the standing question.

Lawyers involved in the case said the Ninth Circuit is expected to follow yesterday’s decision, meaning that the appeal will go forward and the federal judges will rule on the question at the heart of the dispute: Is Proposition 8 constitutional?

The case, which featured the nation’s first federal trial on same-sex marriage, is being closely watched by gay-rights activists and legal observers.

It comes amid a broader national debate over gay rights and is widely expected to end up at the US Supreme Court.

In reacting to yesterday’s ruling, supporters and opponents of Proposition 8 reflected the strong passions surrounding the issue.

“We are delighted that the Supreme Court has clearly reaffirmed our right, as the official proponents of Proposition 8, to defend over 7 million Californians who amended their own state Constitution to restore traditional marriage,’’ said Andy Pugno, general counsel for ProtectMarriage.com.

The California-based group is now expected to defend the ballot initiative in court.

Pugno added that the ruling “is an enormous boost for Proposition 8’’ and “a huge disaster for the homosexual marriage extremists.’’

Opponents expressed relief that the case could now move forward and called on the Ninth Circuit to uphold the lower court ruling and allow numerous same-sex couples to wed. The same-sex marriage ban remains in place while the appeal proceeds.

“The very important part of this is that it frees up the Ninth Circuit to go ahead and decide the constitutional question,’’ said Theodore Olson, a former US solicitor general who is representing Proposition 8 opponents.

Olson, a longtime conservative luminary, formed an odd-couple partnership with liberal trial lawyer David Boies in taking on the ban.

“We are very hopeful for a relatively prompt Ninth Circuit decision vindicating the rights of gay and lesbian citizens in California under the US constitution,’’ Olson said.