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OPINION

Calif. court considers Prop 8 legal question

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SAN FRANCISCO (BP)--California's Supreme Court appeared poised Tuesday to side with supporters of traditional marriage in a critical case that will help determine whether Proposition 8 is constitutional.
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At issue during oral arguments was not the issue of "gay marriage" itself, but instead the question of whether ProtectMarriage.com -- the group that sponsored Prop 8 -- has what is called legal standing and can, under state law, defend the constitutional amendment in federal court.

The issue came to the forefront when former Gov. Arnold Schwarzenegger and former Attorney General Jerry Brown (who is now governor) chose not to defend Prop 8 in court.

If the California court rules that ProtectMarriage.com has legal standing, then the U.S. Ninth Circuit Court of Appeals -- which asked the California court to consider the legal standing issue -- will rule on Prop 8 and the definition of marriage. Opponents of Prop 8 argue that ProtectMarriage.com does not have legal standing and that it has no right to appeal last year's lower court ruling striking down Prop 8.

Passed in 2008, Prop 8 defines marriage as between a man and a woman.

During oral arguments, a majority of justices appeared skeptical to the argument that ProtectMarriage.com does not have legal standing. If it lacked it, some of them suggested, the governor and attorney general in essence would have the power to veto a citizen-approved initiative -- simply by not defending it in court.

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Justice Joyce Kennard said if the court ruled against ProtectMarriage.com it "would nullify the great power pertaining to proposing and adopting state constitutional amendments."

Andy Pugno, an attorney with ProtectMarriage.com, said in an email to supporters that oral arguments went "fantastic."

"The justices seemed baffled by our opponents' extreme position," Pugno wrote. "According to them, our opponents should be entitled to challenge a voter-passed measure and, upon convincing the State's Attorney General not to oppose the lawsuit, exclude the measure's official proponents from the courtroom -- such that the majority of voters go completely unrepresented. As one justice said, 'that just defies common sense.'"

A written ruling is expected within 90 days.

Compiled by Michael Foust, associate editor of Baptist Press.

Copyright (c) 2011 Southern Baptist Convention, Baptist Press www.BPNews.net

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